Stormy, with a Chance of Contempt
Stormy, with a Chance of Contempt
The Trump Trial wraps up its penultimate week (maybe).
Fair warning here, I set out with every intent of making this Jackal short, sweet, and an easy read, but as I’m going through edits, it’s getting dark (and full of terrors). But that just means you can sip on it over the weekend.
Maybe I’ll start calling shorter pieces “shots” and longer pieces “sippers?” The world is my clam bake.
Give me a quick, three sentence summary of what’s been going on.
I got you. I think my general take from following along on Twitter (barf) and reading the transcripts is that the prosecution has been meticulous and super competent. There were a few moments that raised my eyebrows (more on that later), but overall they are building an extremely credible narrative. And, up until about Wednesday or Thursday, I would have said Donald Trump’s team was doing a good job, but that has changed recently.
To get to the eyebrow raise, I want to touch on Trump’s two motions for mistrial. Both were ultimately denied, but it’s worth noting that people in the courtroom said Justice Merchan gave serious consideration to it, and I think for good reason. The motions were related to testimony from Stormy Daniels, who went into extreme (and unnecessary) detail about the nature of her sexual encounter with Trump. Daniels’s old, original recollections of her “time” with Trump were much more playful, but in later years, she gave interviews that detailed the imbalance of power between the two of them. On both the stand and in interviews, Daniels laid out that while she gave consent, she was not a completely willing participant. While gross (and unsurprising, given Trump’s other sexual “encounters”) I’m not totally sure how this was at all relevant to the case, and reporters in the room said Justice Merchan was visibly uncomfortable with Daniels’s answers.
When dealing with this, Trump’s attorneys were intelligent in one way and venturesome in another. First, they were smart to motion for mistrial, because these are the sort of things that are brought up and have success on appeal. However, it’s also possible that they were too cute by half: Justice Merchan told Trump’s lawyers that he sustained nearly every objection they had, and was surprised there weren’t more objections. In fact, at one point he “objected” himself, and halted questioning.
I’ve said this a few times now, but Susan Necheles - Trump’s head lawyer on this case - is whip smart. While it’s a risky strategy, I think they were objecting less because they were hoping for a mistrial.1 In other words, they did not fail to object out of incompetence. And it’s risky because any appeals court is going to look at what transpired and read through the lines; generally, lawyers can suss out when either the prosecution or the defense is using this strategy. A somewhat recent example of this: The Kyle Rittenhouse trial, where the prosecutors clearly knew they were losing and tried to finagle a mistrial; the judge was onto them.2
OK, that sounds bad.
I think it sounds worse than it actually is, mostly because Stormy Daniels is/was the offending party. Justice Merchan even conceded that she was “difficult to control” as a witness. Then, during a whole debate on the second mistrial motion, the prosecution laid out why they asked Daniels all the questions they did: Because Trump still alleges that the affair never happened, so the more details about it, the better. Trump could, of course, counter all of this by taking the stand, but that will not happen.
Aside from this, the prosecution has been stellar. In fact, prior to the Stormy Daniels testimony, the trial could have been described as boring. This is because the prosecution has very effectively headed off the defense by identifying the weak points in their case (the credibility of Michael Cohen and Stormy Daniels), and addressed those weak points with pounds and pounds of hard evidence.
To me, the most devastating part of the case was Hope Hicks’s testimony last week. Hicks was clearly an unwilling witness and did not want to testify against Trump, but she ended up laying out credible evidence that Trump not only had sex with Daniels, but that he wasn’t overly concerned about it coming out unless it had an effect on the election.
To me, Hicks’s testimony was the most important for one of the two elements of the crime that the prosecution has to prove. Let’s recap quickly. Prosecutors must prove that:
Trump falsified his business records
…and that he did so with the intent to commit or conceal another crime
Hicks’s testimony was instrumental towards proving our second bullet point, since it showed that Trump’s only real concern about the Stormy Daniels story coming out was related to its effect on the election. Lawfare has a helpful little chart to lay this all out:
I recently got into an exchange on Twitter (barf) about this:
I like Erickson most some of the time, and I think it was nice that he clarified his tweet. But his clarification was still wrong:
To be clear, prosecutors do not have to prove that Trump intended to “commit or conceal” the Federal “campaign finance crime.” They just had to prove he tried to “commit or conceal” any other crime. In a separate exchange, I pointed out that New York had, in fact, laid out that crime:
I really can’t overstate this: No one knows anything about this case. It can be hard when Trump and his bravado suck all the boringness out of a story, but the media, overall, has done a poor job of covering it. New York law is complex, esoteric, and sometimes downright silly. If you watch cable news, can you think of the last time you saw a veteran New York (not Federal) prosecutor appear on TV to explain what’s happening in the Trump trial? I can’t. I routinely see CNN and MSNBC3 pull from their rolodex of former Federal prosecutors who have lots of opinions on the New York trial, but zero collective experience in State litigation. I’m not dismissing their opinions, but I still think the assessment of Federal prosecutors is less valuable in this case.
In their opening statement, the prosecution quickly identified the crime that they thought Trump had violated and that has been mostly ignored by national media. In reality, the case against Trump is pretty straightforward: He illegally altered his business records in an effort to conceal another crime. If Trump is so obviously being persecuted, surely the defense has a counter argument to such weak charges?
Yeah, what is the defense’s argument?
Spoiler: They don’t really have one. They cannot contest that the business records were altered, mostly because there is hard evidence of them actually being altered. FFS, Trump’s CFO, Allen Weisselberg, literally physically wrote on the payments to Cohen that they had to be “grossed up” to compensate for any tax issues.4 They, in effect, violated the Stringer Bell rule of taking notes on a “criminal f*cking conspiracy.”
I will concede that we have not yet seen complete, objective proof of the alteration, but that is supposedly coming next week. What we have gotten so far is lots of corroboration of that through (boring) accounting documents and witness testimony. The defense cannot avoid that Cohen is ultimately going to testify on Monday that all of the payments to him were verified and approved by Trump, and even though he is a terrible witness, the prosecutors will be able to provide lots of other circumstantial evidence to back up his testimony.
Prosecutors are then going to re-emphasize that Trump made these payments (and all others related to the catch-and-kill scheme) only because there was a potential effect on the election. They will point to both Cohen’s objectively proven crime, and Trump’s intent to violate New York State election law, as well as his clear attempt to circumvent New York State tax laws. They will back this up with testimony from Allen Weisselberg, David Pecker (who testified that he realized they were interfering in the election and was horrified), and other employees at the Trump Organization.
I have said multiple times that Trump’s defense team is serious, but their response to the whole proceeding has been mediocre. Maybe they are making lemons from lemonade, but I was struggling with their cross-examination of Stormy Daniels yesterday. Others were apparently feeling the same way, because the excessive prodding of Daniels ultimately proved nothing. Over and over again, Necheles tried to trip up Daniels and get her to admit that she had never had sex with Trump. Daniels never changed her story, and appeared to get more credible as the questioning went on. At some point, Necheles really seemed to be causing more harm to Trump than good.
Then a really wild thing happened:
After this happened, it sort of dawned on me: This trial is over, and the defense attorneys know it. Early on, they clearly had a strategy, which was harp on the credibility issues surrounding Cohen and Daniels, and basically argue that no matter what they say under oath, there is enough reasonable doubt to disregard their testimony.
But the prosecution has provided a lot of other evidence, and some of it has come from much more credible witnesses (Hicks, for one). I think Necheles knows it’s over, so she is basically doing whatever Trump asks of her. Trump has a reputation for stiffing his attorneys if he thinks they haven’t done a good job, and Necheles wants to get paid, so she is doing whatever he wants. This is the only explanation to me that makes sense, given Necheles’s intelligence.
Wait, so the trial is over?
I think the risk of a mistrial remains with someone like Cohen testifying. Trump’s attorneys are going to try and provoke him, in the hopes that he just lets it all go in a rant. Cohen could pretty easily say something prejudicial about Trump, or stray away from the prosecution’s questions. So, it’s not wrapped just yet, but if you want to ask me if the prosecution has done a good job of proving their case, I would say they have, with zero hesitation.
Where Trump has a significant advantage is on appeal. We have talked a lot about how Trump’s trial is about a misdemeanor charge being escalated to a felony. While Trump is not the only person this has happened to, when it does happen the application of the law has been pretty broad. New York appeals courts have upheld the “broadness” of that law, but the Supreme Court might want to take a look. So, it is possible that Trump’s conviction in New York - should it even happen - travels up through the appeals courts and eventually makes its way to SCOTUS, which reduces his sentence or re-visits the law entirely. Will that change anything prior to November? Probably not.
Just tell us if he’s going to jail, you clown.
I honestly don’t know anymore. I’ll say this: Trump has been held in contempt around thirteen times just in this case. If that happened to another defendant, the question as to whether or not they will serve jail time would easily be answered. But Trump is a former president, and he’s also a first-time offender, and those things still say to me that jail time isn’t happening. But who knows? His behavior during this trial has been outrageous.
He made a statement recently that he would be “happy” to go to jail over this “violation” of the Constitution. I call BS: If he wants to go to jail, then he could just violate the gag order. Instead, he seems to be going out of his way to try and comply. People close to Trump have said he doesn’t even like staying in hotel rooms, so why would he be OK with a jail cell?
I’ll end with this: The New York trial has been far more serious and significant than I think anyone expected. I’ll include the rest of my Twitter exchange (with a very nice guy) from above:
I can’t emphasize this enough: Donald Trump has been indicted 90+ times for various crimes. His charity organization was shut down. His entire company was found to be (basically) operating as a corrupt, falsified organization. His D.C. hotel had to be sold because of its use as a bribery tool. His “university” was shut down and he had to pay back the people he defrauded. In some other universe, Trump is also paying for all the food poisoning caused by Trump Steaks™.
In other words, criminals commit crimes. Trump has been dealing with law enforcement since he was in his twenties. To say he is being persecuted because he is running for the Presidency is like saying the LAPD indicted O.J. Simpson because they did not want him to be in the next Naked Gun movie.
The narrative isn’t that he is a presidential candidate who is being indicted; it is that he is a legally troubled guy running for the Presidency in order to keep himself out of jail. Trump’s defenders should rebut that, rather than making the rest of us rebut their fanciful narrative about his prosecution.
A final note on Stormy.
I’ll be honest: I had this whole thing written up and ready to go. I almost hit “send” and shut my laptop. But I wanted to separate myself from something that has spun out from Stormy’s testimony.
While I admire Daniels’s decision to speak out, confront Trump, and arguably put herself in danger, I think her emergence as a “Resistance” icon is troubling for me. On TV, news anchors have referred to her as an exotic dancer, sex worker, and actress. So, I want to be clear: Pornography is not a “normal” profession nor is it something to celebrate. There is now objective proof from secular sources that porn is incredibly damaging to your brain and negatively affects your mental health. And that’s before you get into the widespread abuse of women within the industry.
Again, Daniels deserves credit for her willingness to testify, and her role in bringing this story to light, but I do not agree with her views about the porn industry.
Should reads:
I only have two: This piece on the potential outcomes in Trump’s immunity case, and this one from Bill Kristol on Joe Biden’s steps (and missteps) regarding Israel.
Ongoing FYI: If and when the immunity case comes down from SCOTUS, I will write something on it (hopefully) that night, which is dark and full of terrors. We wait patiently until then, but a week is coming where there will be a legal Jackal overload.
A mistrial isn’t the same as a not guilty verdict (meaning Trump can be tried again), but it would force New York to re-start all of the proceedings.
These two situations are not analogous because there was arguably a basis for mistrial in Trump’s case, whereas there wasn’t one in Rittenhouse’s, unless it was artificially generated by the prosecutors. But the context is important.
I’m leaving Fox News out because a Federal prosecutor would tell their audience the truth and Fox can’t have that.
It has been assumed that Weisselberg won’t be called to be a witness in this case…don’t hold your breath.