HINDSIGHT - WRITE SOMETHING WORTH READING ABOUT OR DO SOMETHING WORTH WRITING ABOUT
The Updated Republican Trump team
Trump: Arrested (4x) Campaign chair: Felon Deputy campaign chair: Felon
Trump's
run-out-the-clock legal strategy worked
Every
case other than New York is stalled out. Mission accomplished.
MAY 15, 2024
No
matter what happens with Donald Trump’s other criminal cases, we’ll always have
New York, where he’s been walloped with two sets of civil penalties and is
currently sleeping through his hush-money/election
interference criminal trial.
Unfortunately,
despite four indictments, it looks like New York is the only trial that will
take place before the 2024 election. With more than a little help from his
friends, Trump’s delay tactics have been remarkably successful, and he probably
won’t see the inside of another criminal courtroom any time soon.
Cannon comes through for the guy who appointed her
Last
week, Trump appointee Judge Aileen Cannon issued a bizarre order that indefinitely delayed
Trump’s trial for his mishandling of classified national security documents.
It’s the culmination of months of foot-dragging on Cannon’s part, and it’s one
that legal experts agree looks equal parts deliberate and
incompetent.
Cannon’s
May 7 order set 14 pretrial deadlines, vacated the May 20, 2024, trial date
that had been tentatively set, and just didn’t bother to set a new one. Her
reasoning? Setting a trial date would be “imprudent and inconsistent with the
Court's duty to fully and fairly consider the various pending pre-trial motions
before the Court, critical CIPA [Classified Information Procedures Act] issues,
and additional pretrial and trial preparations necessary to present this case
to a jury.”
That
sounds plausible until you remember that Cannon herself is solely responsible
for delays in addressing pretrial issues. It’s the judicial equivalent of
running around in a hot dog costume declaring that “we’re all trying to find
the guy who did this.” Her behavior is so obviously favorable to the former
president that one Republican close to Trump told Rolling Stone Cannon is his “favorite
member of the Trump campaign,” while another Trump adviser called her “a
godsend.”
The
adviser isn’t wrong. Cannon has been helping slow-walk the matter for nearly
two years, going back to her ludicrous decision to appoint a special master
after the FBI searched Mar-a-Lago. The Eleventh Circuit Court of Appeals issued
a scathing decision reversing Cannon, but that
smackdown hasn’t changed her conduct.
It
isn’t just that Cannon is magicking the trial itself away. She’s also tying up
prosecution resources by considering fringe legal theories from the Trump team.
In March 2024, she ordered both parties to craft jury instructions regarding
the Presidential Records Act (PRA), giving credence to Trump’s assertion that
the PRA allowed him to declassify national security documents and thus turn
them into personal records that he could keep.
The
PRA has no language to this effect, and, as special prosecutor Jack Smith
pointed out in his filing to the court, even if the PRA
authorized such behavior, Trump has never presented evidence that he
declassified the documents. Despite Smith’s request she decide the matter
promptly so the prosecution could appeal to the 11th Circuit if necessary, Cannon
has made no move to rule.
Cannon’s
newest order shows she continues to allow Trump considerable leeway regarding
other far-fetched arguments. She scheduled a three-day hearing in mid-June to address
Trump’s motion to “define the scope of the prosecution team.” This is Trump’s
Alex Jones-style “deep state” argument — that Trump is entitled to additional
discovery because Smith purportedly worked with the national security
establishment at the behest of the White House to gin up
charges against Trump. The hearing is going forward despite prosecutors
explaining that there has never been such a hearing in Cannon’s jurisdiction
and there’s no law permitting it.
Cannon
also pushed back some of her own deadlines, allowing Trump an extra six weeks
to file papers regarding what classified material his team plans to use during
trial. This was the second time Cannon granted an extension on this, as she had
already moved that deadline from November 2023 to May 2024. The domino effect
of this newest delay led to Cannon moving the required CIPA hearing out to July
22.
When
dealing with classified documents, a CIPA hearing is required so national
security information is not improperly revealed at trial. No trial can occur
until after the hearing is held and the judge rules. Cannon has failed to rule
on several other pending motions, so there’s no reason to believe she will rule
swiftly on CIPA. The Trump team is also requesting four days of hearings on their
allegations of prosecutorial misconduct. There’s no ruling from Cannon on this
yet, nor is any timeline included in her most recent order.
The
inescapable conclusion is that the Mar-a-Lago case is well and truly dead until
after the election, when if Trump wins he’ll almost certainly be able to use
his power to make it go away.
SCOTUS derails the January 6 case
In
addition to Cannon, Trump is getting help from the US Supreme Court, which
agreed to hear his absurd immunity claim in the January 6 election interference
case — one that Trump’s own lawyer admitted would allow a president to order
assassinations of political opponents.
In
December 2023, special prosecutor Jack Smith asked the Supreme Court to take
the question on an expedited basis but they declined. This meant that the DC
Circuit Court of Appeals had to hear the appeal first.
The DC
Circuit ruled against Trump on February 6, 2024, and the Supreme Court agreed
to hear the case on February 22. Apparently, the Supreme Court didn’t see the
issue as particularly pressing and set oral arguments for April 25. During oral
arguments, the Court’s conservative wing signaled they didn’t necessarily buy
the entirety of Trump’s immunity argument but, as Liz Dye wrote, they “seemed to think the question of
whether the president has to obey the laws of this land is a major head
scratcher.”
The
most cynical interpretation of the behavior of the Court’s conservatives is
that they are not interested in giving presidents absolute immunity, but
instead want to help Trump run out the clock. The right-wing justices will look
rational by rejecting the outer limits of the immunity claim, but by dragging
out a decision until the end of the term in June, they’ll have helped Trump
push this case off until after the election. While the appeal drags on, judge
Tanya Chutkan was forced to vacate the original trial date of March 4, 2024,
and she will not set a new schedule until the immunity issue is resolved.
There
are still other pre-trial matters to be taken care of, which Just
Security estimated could take three months, and the
trial is estimated to take 8 to 12 weeks. Even if Chutkan runs the tightest
ship imaginable after the case is sent back down and bats away every other
ridiculous Trump claim, the timing just doesn’t work out.
The Georgia case is also paused indefinitely
The
calendar also doesn’t favor the prosecution in the Georgia case, where Trump is
charged with racketeering, false statements, forgery, witness tampering, and
election fraud. However, where the classified documents and January 6 cases
have dragged on with the assistance of Trump appointees, the roadblocks in the
Georgia case are mainly the fault of the prosecutor, Fani Willis.
Willis
hired her boyfriend, Nathan Wade, as a special prosecutor on the case, and when
one of Trump’s co-defendants found out, he moved to dismiss the indictment and
disqualify Willis. After a hearing in February, the presiding judge ruled the
following month that Willis would not be disqualified. But Trump and eight of
his co-defendants asked the Georgia Court of Appeals to allow them to appeal
the decision, and last week, the appellate court agreed to hear the case.
No
dates for briefing or oral argument have been set. The appellate court has
roughly six months to hear and decide the case, which means a decision could
come as late as November. Also, the trial court judge will probably refrain
from setting a trial date until this is decided.
Unless
the Georgia appellate courts move with unusual swiftness, Willis’s misstep here
handed Trump the considerable gift of delaying the trial past the election.
The New York case isn’t going well for Trump
Meanwhile,
back in New York, Trump’s former fixer, Michael Cohen, spent Monday and Tuesday
testifying about his role in buying Stormy Daniels’s silence during the 2016
election.
Cohen’s
testimony neatly tied together the testimony of several earlier witnesses.
Cohen worked with the National Enquirer’s David Pecker to kill other negative
stories about Trump during the 2016 campaign, negotiated with Daniels’s
then-attorney, Keith Davidson, over the hush money payment, and set up bank
accounts under false pretenses. Cohen also testified about his discussions with Allen Weisselberg, then
the chief financial officer for the Trump Organization. Weisselberg signed off
on the payments reimbursing Cohen.
Neither
side has called Weisselberg to testify, and he is currently incarcerated for
five months after pleading guilty to two counts of perjury in Trump’s civil
fraud case. Weisselberg also spent 100 days in Rikers in 2023 after pleading
guilty to tax fraud in a case against the Trump Organization. Weisselberg may
end up taking the stand here, as Trump’s attorneys object to the prosecution’s
plan to present a severance agreement showing Weisselberg is set to get an
additional $750,000 from the Trump Organization this year. The implication is
that Weisselberg has been paid not to testify. Politico reported that when Judge Merchan signaled he
might have Weisselberg appear, Trump’s attorneys looked “visibly concerned” and
stated there were “procedural problems” with adding him to the witness
list.
In the
end, Cohen’s testimony was simultaneously earth-shattering and banal. On the
one hand, it’s utterly jarring to listen to the details of a criminal
hush-money scheme undertaken by a former president to ensure he won an election
while that same former president is running again. On the other hand, most of
what Cohen testified to was already known. The biggest revelation on Monday was
likely that after Cohen literally committed crimes for Trump in 2016, Trump
rewarded him by cutting his bonus by two-thirds.
Prosecutors
said they may conclude their case by the end of this week, at which point we
will see what the defense has in store. The biggest question is, of course,
whether Trump will testify. Trump initially said he would “absolutely”
testify, but has since watered that down to that he would “probably” do it “if
necessary.”
It’s
difficult to envision Trump holding it together under several days of
cross-examination, particularly given that he’s still insisting he did not have sex with
Daniels. It’s equally difficult, though, to envision Trump missing an
opportunity to grandstand. Regardless, as Trump’s other criminal cases drift
off of the calendar, this case is the best chance to see that some small measure
of justice is served.
Flirting with Disaster
No one will be insulated from the ravages of a second Trump term.
MAY 15, 2024
IN DECEMBER 2022, DONALD TRUMP said something that, in a healthy political culture, would have spelled his doom. Referring to his lie that the 2020 election was stolen, he wrote, “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution. Our great ‘Founders’ did not want, and would not condone, False & Fraudulent Elections!”
All rules, regulations, and articles must be terminated for his sake. That is not the language of populism, that is aspiring despotism. The Constitution itself must be cashiered if it stands in the way of his ego and his power. There it is, in black and white, Trump’s direct assault on the foundation of the republic.
And how many Republicans announced after this that they could no longer in good conscience support Trump? How many went on record promising, as Liz Cheney did a year later, that they would do everything in their power to ensure that he never came near the Oval Office again? I counted one. John Bolton, Trump’s former national security advisor, said the post was “disqualifying” and that all GOP candidates should issue “Shermanesque” statements to that effect. A few other Republicans mildly disagreed, but didn’t go so far as to say that trashing the Constitution was beyond the pale.
As with so many landings along the steep staircase of Republican decline, things would have been different if there had been pushback; if leading Republican office holders and opinion shapers had stood on their hind legs and said, “Hey, I liked Trump fine until now but this is a deal breaker for me.” But there was barely a bleat from the party; it was thoroughly demoralized in all senses of the word.
That was eighteen months ago. Today, the Constitution terminator leads in most of the polls, and bigwigs from Wall Street to Silicon Valley, along with spineless ciphers like Bill Barr and Chris Sununu, are telling themselves and others that a second Trump term might actually be okay.
Jamie Dimon of JPMorgan Chase reassured his audience in Davos (where else?) that Trump did many good things while in office, and that whatever the outcome of the November election, “My company will survive and thrive.”
Howard Lutnick, CEO of Cantor Fitzgerald, and hedge fund manager John Paulson hosted a fundraiser for Trump,reports Bloomberg News. Billionaire investor Nelson Peltz endorsed Trump, as did Robert Bigelow, a DeSantis backer who has made his peace with the certain GOP nominee. Ken Griffin, founder of Citadel, hasn’t endorsed Trump yet, but explained that “for investors, overall, a Trump administration is good for our capital markets. It encourages the sense that government is aligned with you and not opposed to you.”
Lenin is supposed to have said that when it came time to hang them, the “capitalists will sell us the rope.” These capitalists are deluding themselves if they imagine that another Trump term in office will be good for them. Yes, Trump is a “businessman,” but more in the style of Tony Soprano than Andrew Carnegie. Everything he is suggesting about a second term would guarantee that inflation soars beyond anything we’ve seen in this century.
Trump is promising an all-out trade war—10 percent tariffs on all products, a 60 percent tariff on goods from China, and a 100 percent duty on imported cars. Think he hasn’t the power? In his first term, he cited “national security” to impose tariffs on Canada (Canada!) and got away with it. The inflationary effect of his new, larger tariffs would be off the charts.
Similarly, Trump has issued broad hints that he will tamper with the independence of the Federal Reserve, which could spell much worse inflation than we’ve yet experienced.
In any case, what these Trump backers seem not to appreciate is that their riches are only possible because the United States is a stable, democratic country. If we cease to be stable—and perceived as such by investors around the world—our national debt, already among the highest in the world, would become a potentially crushing burden. Global investors are happy to underwrite our debt now by purchasing treasury bonds because we’re a safe investment. If we reelect a lying, despot-loving, quadruple-indicted, ignorant cretin, the United States will be a lot less appealing to overseas investors. And when we cease to be a safe haven for foreigners’ nest eggs, we will be in trouble. We will have to raise interest rates to attract capital, which will increase the burden of our existing debt. How would Wall Street like them apples?
Honestly, these economic arguments ought to be third- and fourth-order considerations for any American—including billionaires. Economic stability is important, but the gravest threat is to our liberty. No joke, as President Biden might say.
We are staring down the possibility of putting someone back in power who has demonstrated that he is willing to use informal violence to achieve his anti-democratic ends. He attempted a coup with a mob of enraged zealots. How tragically foolish must you be to give him the power to wield formal, state-sanctioned violence? Think the president hasn’t the power? Read the Insurrection Act.
Those who are soothing themselves that a second Trump presidency wouldn’t be so bad are recalling the first term incorrectly. The reason Trump was unable to order that border crossers be shot in the legs, or that the IRS conduct audits of his foes, or that the United States withdraw from NATO, or that the military shoot rioters after George Floyd’s murder, or that the Justice Department lie about election results, or any of the myriad other crimes, outrages, or stupidities the former president contemplated was that his own hires talked him out of things or slow-walked them until Trump’s goldfish attention turned elsewhere.
In a second term, those officials would be gone. As his former chief of staff John Kelly put it, “The lesson the former president learned from his first term is don’t put guys like me . . . in those jobs. The lesson he learned was to find sycophants.”
Those sycophants are lining up. Applicants to work at the Republican National Committee right now must aver that the 2020 election was stolen. The whole party must be a cult. How much worse will it be if the cult leader is crowned with success by the voters? The Republicans who were brave enough to resist Trump’s illegal, immoral, and unconstitutional demands the first time around will be loath to reprise their acts if perceived “enemies of the state” are being audited by the IRS, harassed by the FBI, indicted by a Trumpified DOJ, or worse.
The foreign policy implications of electing Trump are just as frightening. He disrupted key American alliances in NATO and East Asia in his first term, but would destroy them in a second term. Without the U.S. security guarantee, nations around the globe would rush to acquire their own nuclear stockpiles. Trump would reward Putin’s aggression by abandoning Ukraine, which would whet Putin’s appetite for the Baltics, Xi’s appetite for Taiwan, and God only knows what other aggressors’ plans.
Those are the stakes. It is tragic and shameful that so many fail to see it.
Hurry Up and Wait:
Four Rules for the Next Six Months
With a monumental
election looming, businesses need to get prepared for whatever's next. Now is
no time to take big risks.
EXPERT OPINION BY HOWARD TULLMAN, GENERAL MANAGING PARTNER, G2T3V AND CHICAGO HIGH TECH INVESTORS @HOWARDTULLMAN1
MAY 14, 2024
We all know that entrepreneurs just can't wait. Patience is
not generally regarded as a virtue in the new business building business.
Anything is better than doing nothing. A bias for action doesn’t begin to
describe the desire to keep moving -- hopefully forward -- and any motion
sometimes fills the bill, action which effectively overcomes anxiety, especially after
long periods of inactivity and stasis. It’s
an occupational disease (we used to joke: let our sickness work for you) which
frankly has always been a mixed blessing because, if most of the people setting
out on the journey to create and grow something entirely new knew just how long
and hard the process was going to be, they’d never take the ride. As Nelson
Mandela said, it always seems impossible until it’s done.
Unfortunately, the next few months-- until the
upcoming election is hopefully resolved and the Orange Monster is sent packing,
ideally to jail-- are going to be perilous and fraught with risk. That’s
especially true for startups and younger businesses, because in addition to
aggressive and constant change, we’ll be facing new levels of government and
judicial involvement, regulation and interference. Not to mention all the
vagaries of an election. The smartest and most prudent strategy under the
circumstances may well be to batten down the hatches rather than trying to
charge out of the gates and get over the next hill before the competition does.
Hunker down like a rabbit in a storm and wait it out. If you have to grow, go
slow. Those who can’t wait, never win.
And, aside from a lot of painful patience and anxious
nail-biting, what is really going to be required is a plan for what to do with
your team while you’re treading water so that you’re ready to move when the
time is right, and they’re all prepared to move with you. It’s always a good
idea to have a Plan B while you’re waiting to be wonderful.
Here are four critical areas that you can profitably spend
your time working with your team to polish and perfect over the next
six months.
(1) Deepen your connections with your
current customers, clients, and vendors.
Check in to see how their businesses are doing, pay them a visit and don’t ask for an order or anything else, make
sure their supplies and materials are current and that their inventory is
accurate or do some overdue maintenance for their ERP systems so they’re
up-to-date. There rarely seems to be enough time in the regular day-to-day
crunch to touch base and take care of the little things that will matter in a
pinch. This is the kind of extra effort and the gestures that will be
appreciated and remembered the next time a renewal, reorder, price increase, or
new order is on the line.
(2) Train and retrain your newest employees and
pair them with an older buddy for real-time support.
Every owner and manager thinks that all this kind of stuff
- training, testing, teaching - is getting done on a regular basis, but it’s
another of those areas where there’s never enough time, the materials are
missing or ancient, or it’s someone else’s job to do and no one knows who that
might be. And it never hurts to also make sure that those more experienced and
longer-term employees still understand the rules and regulations, are current
on the latest legal and technical requirements, and haven’t developed shortcuts
or other bad habits that can eventually bite you in the butt. Gray hair is a
sign of age, but not necessarily wisdom.
(3) Tighten and streamline your inbound systems
-- reception, website, voicemail, and internet -- to make sure your “front
doors” aren’t obstacles instead of attractive access points.
This is another area that seems obvious and essential, but
millions of businesses haven’t looked at, tested, updated or streamlined their
home pages or other aspects of their websites since the beginning of the web in
1990. Voicemail trees are probably in even worse shape and apparently no one
(other than the home delivery newspaper guys) has figured out that phone
numbers can be linked to your CRM and this is likely to provide a huge hint as
to who might be calling and what their name and address is, so that your
callers don’t have to re-enter the same information every single time they
call. A good start to see where you stand on the “customer effort” scale is to
call your own shop or visit your website and see for yourself how drawn-out,
time-wasting and painful the process of reaching a human
being can be.
(4) Build a calendar and an attack plan for the
eight weeks after the election.
Your team needs a calendar and a tickler system to make sure they
know before critical decisions are being made by
their clients and customers. While the whole world will be watching the
election results, businesses will also be planning, budgeting, and staffing up
for the next year; the eight weeks following the election will be a critical
time for two key reasons.
First, out of sight means out of mind. You need to have
your people as present as possible and actively in the conversations when the
discussions about contract renewals are taking place. Also, it’s the time to
give your corporate champions the ammunition and documentary support that they
will need to justify your next payment, the “second sale”, and especially those hoped-for pricing increases.
Second, every business unit, government agency or other
institution knows that it’s a cardinal sin not to spend every dollar in their
allocated budget before the year end. It’s hard to ask for more if you still
have money left over. This encourages all kinds of urgent and last-minute
plans, commitments, and expenditures by procurement people and you want to be
sure that your company is a recipient of the year-end Xmas largesse.
The bottom line is that just because it’s not the precise
time to move ahead doesn’t mean that you shouldn’t be planning, preparing and
positioning your business to strike as soon as the right time and opportunity
presents itself. The future isn’t going to take care of itself. All the hopes,
dreams, good intentions, and idealism won’t get the job done without a thorough
and well-thought-out plan of action.
The New York Trump Case Is Kind of
Perfect
I thought this trial was a sideshow; I now think I was
wrong.
MAY 13, 2024, 4:43
PM ET
This is The Trump Trials by George T. Conway III, a
newsletter that chronicles the former president’s legal troubles. Sign up here.
Not all that long ago, I thought that the trial currently
being held in The People of the State of New York v. Donald J.
Trump would be the last one I’d want to see as
the first one tried against the former president. It seemed
the least serious of the cases against him. Here’s a man who tried to overthrow
American democracy by launching a coup to stay in power. A man who allegedly
stole dozens of boxes of classified national-security documents from the White
House, some containing secrets about other countries’ nuclear-weapons
capabilities, then lied about the documents, concealed them, and obstructed a
federal investigation about them.
I thought I would have strongly preferred the cases about
those matters to have gone first, particularly the secret-documents case, which
substantively would be a lock, were it not for the judge overseeing
it. But I feel the need to admit error.
The truth is, I’ve come around to the view that People v. Trump is,
in at least some ways, the perfect case to put Trump in the dock for the first
time, and—I hope, but we’ll see—perhaps prison.
Because this case really captures Donald Trump. The legal
commentariat have been engaged in an odd debate about what to call it. “The
Stormy Daniels case.” “The hush-money case.” “The porn-star-hush-money case.”
(Personally, that’s always been my favorite, and I think it sounds even better in German—Pornostarschweigegeldrechtsfall.) The more
legally precise would like it to be known as “the New York
business-records-falsification case,” because that’s what the New York penal
code says it is. Some high-minded people I know prefer “the New York election-interference
prosecution,” because it involves the concealment
of a matter that might well have affected the outcome of the 2016 presidential
race.
All these locutions work, but what the case is really about
is Trump’s modus operandi—lying. He’s a matryoshka doll of
mendacity. He lies, usually lies some more, and then often lies about the lies
he’s previously told. He told at least 30,573 lies while president, by The Washington Post’s
count. He lies almost whenever he opens his mouth, even when truth would better
serve him. To be sure, his other criminal cases involve lies—lies about the
2016 election, lies about the military secrets he stole. But the alleged lies
in People v. Trump strike at the core of his moral
putrescence—and Trump knows it. They are lies allegedly meant to cover up a
tawdry man’s tawdry behavior. The case truly embodies Donald Trump. And for
that reason, I think, it deeply disturbs him.
That’s what stood out to me last Thursday as I sat in court
watching the second day of the cross-examination of the prosecution’s witness,
Stormy Daniels, who had taken the stand to testify that she’d met the defendant
at a celebrity golf tournament on the south shore of Lake Tahoe in 2006, that
he invited her to his room at Harrah’s hotel and casino there (ostensibly as a
prelude to dinner), that she (rather unenthusiastically) acceded to his
advance, that they then (rather briefly) had sex, and then that, 10 years
later, days before the defendant won the 2016 presidential election, she was
paid off by the defendant’s fixer and lawyer, Michael Cohen, to keep her mouth
shut about it all. (Trump denies having had sex with Daniels, and he also
denies having falsified records in an effort to suppress reports of the
liaison.)
Strictly speaking, Daniels’s testimony wasn’t
necessary—particularly the details about the sex. The case is about whether
Trump caused the falsification of business records at his business, and whether
that falsification was intended to cover up another crime (among other
offenses, violations of the Federal Election Campaign Act). Daniels has
absolutely nothing to say about the Trump Organization’s business records, and
the fact that she was ultimately paid the hush money isn’t in dispute. The sex
strictly doesn’t matter: If Daniels and Trump didn’t have sex—as Trump
maintains—but the facts alleged by the New York County District Attorney’s
Office were otherwise the same and proved, Trump could still be found guilty of
a Class E felony under the New York penal law.
But as we have so often seen over the past nine years,
Trump’s instinctive, narcissistic mendacity came into self-defeating play once
again—this time by making Daniels’s testimony more significant than it had to
be. It’s hard to imagine that many sentient, honest human beings could believe
Trump’s denials of having congressed with Daniels. Yet Trump continues to
insist on denying it—not only in public, but in court. And not only is sex not
an element of the crime, but his strongest defense—the one he could actually
skate on—will be to argue that there is insufficient evidence that he knew his
people were falsifying business records. This defense faces many
problems—including that Trump personally signed (on the Resolute desk!) some
checks (made out to Cohen) in packets with false backup attached. Still, Trump
would have been best off having his lawyers focus their efforts on the question
of his knowledge and intent regarding the payments.
As usual, though, this defendant just couldn’t help
himself. The prosecution was entitled to put on evidence of the sex to
establish Trump’s motive for the payoff and cover-up. The defendant could have
had his lawyers not dispute the point, even stipulate to it. What’s the harm?
His political supporters stand by him even though he’s already a civilly adjudicated sex offender, so why would they care one whit about what he did
consensually for a couple of minutes with an adult-film actor once upon a time
in Stateline, Nevada? Had he not insisted on contesting the point, Daniels
might not have had to testify, or at least she might have been on and off the
stand in a flash. Because, again, what ultimately matters in the case happened
mostly in New York City in 2016.
Trump’s insistence on pointlessly contesting Daniels’s
veracity entitled the prosecution to draw her account out even more than it
otherwise could have—not only to establish a record on why Trump would have
been motivated to hush Daniels up (because sex), but to bolster her credibility
with detail of her recollection (about sex). As Justice Juan Merchan later told the defense counsel in denying their motion for a mistrial:
Your denial [of a sexual encounter] puts the jury in a position of having
to choose who they believe: Donald Trump, who denies there was an encounter, or
Stormy Daniels, who claims there was.
Although the People do not have to prove that a sexual encounter actually
did occur, they do have the right to rehabilitate Ms. Daniels’ credibility and
to corroborate her story, which was immediately attacked [by the defense] on
opening statements.
The more specificity Ms. Daniels can provide about the encounter, the
more the jury can weigh to determine whether the encounter did occur and, if
so, whether they choose to credit Ms. Daniels’ story.
The result, thanks to the defendant, was the introduction
of more evidence that made him look like a duplicitous clod. There were limits,
to be sure. Merchan warned the prosecutors before Daniels took the stand that
“we don’t need to know the details of the intercourse.” (The universe thanks
you, Your Honor.) Accordingly, and in contrast with how some characterized it,
Daniels’s testimony wound up not being very “graphic.” As the prosecution later
pointed out to the court, “there was not a lot of detail elicited” about “the
actual sexual encounter,” which was the subject of only a handful of questions
put to the witness. Not just that, but the judge also sustained objections or
struck testimony on what position Daniels and the defendant were in, whether she
touched his skin, and how Daniels, as they coupled, “was staring at the ceiling
… trying to think about anything other than what was happening there.”
In the end, the only somewhat lurid detail about the sex
that actually got into the record was that the former president (in contrast
with performers at her prophylactic-mandatory then-employer, Wicked Pictures),
didn’t wear a condom, which concerned her. And that small factoid got in solely
because the defense counsel inexplicably failed to object. (The judge later
observed, “For the life of me, I don’t know why [the defense counsel Susan]
Necheles didn’t object. She had just made about 10 objections, most of which
were sustained. Why on earth she wouldn’t object to the mention of a condom, I
don’t understand.”)
So the testimony wasn’t all that sexy, in the literal
sense. Still, because of the defendant’s denial of what happened that night at
Harrah’s Lake Tahoe, the testimony ended up being deeply embarrassing to Trump.
To bolster Daniels’s credibility, the prosecution’s questioning went into great
detail about what led up to the fleeting fornication—essentially, her
conversations with Trump beforehand. And that brought out some memorable, and
highly believable, testimonial gems that perfectly capture the lowbrow,
hyper-self-absorbed 45th president of the United States. There’s Trump telling
Daniels, “You remind me of my daughter because she is smart and blond and
beautiful.” And him admitting that he and his wife, Melania, “actually don’t
even sleep in the same room.”
And there’s him repeatedly interrupting Daniels to talk
about—whom else?—himself: “He would ask me questions and then not let me finish
the answer. He kept cutting me off, and it was almost like he wanted to one-up
me, which was just really hilarious when you think about it.” And there’s how,
when the self-consumed future defendant asked, “Have you seen my new magazine?”
and pulled out an issue with his face on it, Daniels called him “rude,
arrogant, and pompous,” and said, “Someone should spank you with that. That’s
the only interest I have in that magazine. Otherwise, I am leaving.” And
there’s how, when finally faced with the prospect of Daniels walking out, Trump
rolled the magazine up and gave it to her.
In that Nevada hotel room that night, Daniels said, she
rose to the challenge:
“I took it from him and said, turn around. And I swatted
him.”
Where?
“Right on the butt.”
The alleged spanking hardly could have rent Trump’s rump in
2006. But given his extreme vulnerability to narcissistic injury, the story
surely had to have inflicted acute trauma upon his most
delicate ego when Daniels told it 18 years later.
We need not speculate. The day before, Merchan had ruled on
the district attorney’s third motion to hold Trump in contempt for violations
of the court’s gag order, which restricts the defendant’s ability to make
public statements attacking witnesses. And for the tenth time,
Merchan held Trump in contempt. But more important, Merchan gave the defendant a warning.
The legal maximum of a $1,000 fine for each count of contempt, the judge
observed, had failed to deter Trump from violating the gag order; “therefore,
going forward, this Court will have to consider a jail sanction if
recommended.” He addressed the defendant directly, in open court: “The last
thing I want to do is to put you in jail … But, at the end of the day, I have a
job to do, and part of that job is to protect the dignity of the judicial system
and compel respect … So, as much as I do not want to impose a jail sanction … I
want you to understand that I will, if necessary and appropriate.”
That was where matters stood the next morning, when Daniels
testified about the spanking: Trump was so very close to—perhaps just one more
contumacious act away from— incarceration. And yet when he heard Daniels say
she had spanked him, he almost landed himself in lockup. Not long after that
testimony, the court took its regular midmorning break. The jury was excused,
and Merchan immediately called the lawyers to the bench. He told the defense
counsel that their obviously “upset” client had been “cursing audibly” and
“shaking his head.”
Trump had done that, in particular, the judge said, “when
Ms. Daniels was testifying about rolling up the magazine, and … smacking your
client.” Quelle surprise.
“That’s contemptuous,” said an angry Merchan. “It has the
potential to intimidate the witness.” Even without a gag order, and 10 prior
violations of it, swearing at a prosecution witness is the kind of conduct
that, before some judges, could quickly land a defendant in jail. Merchan
commanded: “You need to speak to him. I won’t tolerate that.” And so the
lawyers remonstrated with their client during the break. It was all a bit
reminiscent of a moment in the second E. Jean Carroll defamation
trial, when, within earshot of the
jury, Trump had muttered that the trial was a “witch hunt” and a “con job.”
The presiding federal district judge, Lewis A. Kaplan, threatened to eject
Trump from the courtroom. “I would love it. I would love it,” Trump responded.
To which Judge Kaplan replied, “You just can’t control yourself in this
circumstance, apparently.”
In Merchan’s courtroom last week, whether Trump could
control himself had once again become the question; and once again a judge gave
him a break. But the struggle continues, and it’s being waged behind the
scenes—largely by Trump’s legal and political teams. Another person battling to
maintain his freedom would probably remain focused on that battle, but Trump
remains distracted by his petty obsessions and resentments, including of some of the faces he sees in the
gallery. A couple of weeks ago, he glared at me. I had smiled at him. He didn’t like that. He also seems
to have a particular distaste for the MSNBC host Lawrence O’Donnell.
Trump’s many grievances pose a problem for him. As Jonathan
Swan and Maggie Haberman of The New York Times reported last
week, “People close to Mr. Trump have worried about whether long days in the
courtroom have had an effect on his mental state.” The care and feeding of a
narcissistic sociopath (see my exposition on that subject five years ago here in The
Atlantic) and keeping him on a relatively even emotional keel is
difficult—and sometimes impossible—even on a good day, and so Trump’s team has
resorted to extraordinary measures to soothe him during this trial.
A key player in the current effort is apparently a young
aide named Natalie Harp. Her job—no joke, this was in the Times—is
to schlep around a portable printer “so she can quickly provide Mr. Trump with
hard copies of mood-boosting news articles and social media posts by people
praising him.” Last Thursday, after Daniels’s testimony, team Trump apparently
found another use for this device. During the lunch break, Trump posted on his
Truth Social account pictures of … me … from Election Night 2016. Alas, in one of the
shots, I was, confessedly, rather inebriated. I had tears of joy in my eyes,
was wearing a “Make America great again” hat, and was hugging my then-wife, the
campaign manager whose remarkable talents had astoundingly just elected a
buffoon. “Mr. Kellyanne Conway celebrating my Victory in 2016!” Trump’s post
read. (Yes, Donald, supporting you was indeed a low moment in my life. Damn,
you sure know how to hurt a guy.)
Now, I mention this not (just) because it is insane,
hilarious, and involves me, but because it also makes my point about Trump
being his own worst enemy. His uncontrollable pique at his plight, a plight
caused by his own poor choices, leads him to make even more poor choices—and
here, to impose those choices upon not just his political aides but his lawyers
to boot.
Which brings us back to Daniels on the stand.
When prosecutors completed their direct examination of her
on Tuesday afternoon, the cross-examination by Trump’s most competent lawyer,
Susan Necheles, began. A Yale Law School graduate, she’s the one member of
Trump’s current legal team who appears to be universally respected, and with
good reason. By all accounts, and from my own limited observation, she’s
extremely smart, highly experienced—and an excellent cross-examiner. As a
woman, moreover, she was the obvious choice to be the one who cross-examined
Daniels before a jury. Necheles started doing a disciplined and seemingly
effective job of that on Tuesday afternoon. But she didn’t finish the
examination, because it was too late in the day. Court adjourned.
The next day was Wednesday, a day off from the trial—the
day each week that Merchan handles his other cases. Normally, when even a small
hiatus like that occurs during a witness’s cross-examination, that’s a very
good thing for the cross-examining side, and a very bad thing for the witness.
The cross-examiner gets the chance to go back through the transcript of the
witness’s direct testimony, tighten her lines of cross, focus them on the most
important points elicited by the other side, and otherwise sharpen her knives.
But that didn’t happen here. When Thursday’s proceedings
began, but before the witness returned to the stand, you could see the dynamic:
Trump, sitting at counsel table next to poor Necheles, was talking animatedly
into her ear, at length. Watching this, I imagined that the defendant had spent
the day off stewing about the spanking. It couldn’t have been much fun for his
lawyers.
And the result wasn’t good for the defense. Necheles’s
resumed cross-examination was bad, not because Necheles was a bad examiner, but
because the examination, for a reason we can all take an educated guess about,
became overlong, and overdone. It became too argumentative, too focused on
badgering the witness and on attacking trivial aspects of her account. At one
point, Necheles absurdly engaged in cross-examining Daniels on the geography of
the Stateline, Nevada–South Lake Tahoe, California conurbation, the idea
apparently being to challenge Daniels on whether she had actually taken a cab
around town instead of walking in her high heels.
The cross also forayed into archaic, even nonsensical,
slut-shaming. Sure, the witness made a living engaging in sex on camera for
money. But does that really mean she shouldn’t have been horrified to see
Donald Trump suddenly take off his clothes? And was there any logic at all in
seemingly trying to show that the sex the defense said didn’t occur
was consensual because Daniels wanted it? The defense’s cross-examination made
Daniels appear more sympathetic than any prosecutor’s direct questioning ever
could.
Worse yet, it emboldened Daniels. She’s a smart woman—and
she’s clearly strong-willed, with a sharp, quick-witted tongue. Normally it’s
not a good idea for witnesses, even smart and tough ones—perhaps especially
smart and tough ones—to fence with lawyers too much on cross-examination;
witnesses tend to lose credibility when they do. But the belabored and
argumentative nature of this cross-examination gave Daniels some running room.
And she took every inch of it.
At one point, for example, Necheles asked a question about
Daniels’s history of writing porn scripts containing “phony stories about sex
[that] appear to be real”—obviously implying that Daniels’s story about Trump
in the hotel room was fake, like the scripts. Daniels’s devastating retort:
“The sex in the films, it’s very much real. Just like what happened in that
room.”
At another point, Necheles attacked Daniels for selling
merchandise about Trump’s indictment.
Necheles: Again, you’re celebrating the indictment by selling things from
your store, right?
Daniels: Not unlike Mr. Trump.
And then, this jewel of an exchange, in which Necheles got
zinged once again, and, by unsuccessfully moving to strike the zinger, drew
more attention to it:
Necheles: Okay. Even though you tweeted and celebrated about him being
indicted, you have no knowledge of what he was indicted for?
Daniels: There was a lot of indictments.
Necheles: Your Honor, I move to strike that.
Prosecutor Susan Hoffinger: It is responsive, Your Honor.
The court: It’s responsive. Overruled.
I’m pretty sure I saw some of the jurors struggling at
times to suppress laughter, as I was. Simply put, Daniels wiped the floor with
Necheles. But I don’t blame Necheles. If I had to guess—and I admit I’m
speculating here—I’d say that a lot of what Necheles did on Thursday was
against her better judgment. To my mind, the cross-examination would have been
orders of magnitude better had it been confined mostly to two of the questions
Necheles asked toward the end of it: “You know nothing about the business records,
right?” “You know nothing about what [the defendant] does or does not know
about the business records, right?” At the end of the day, those were the
questions that most mattered, to which Daniels’s answers had to be, and were,
no, and no. But that testimony got lost in the mix with everything else—thanks
to Trump’s easily bruised ego.
George T. Conway III is an attorney and a contributing writer at The
Atlantic.
