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
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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.
