A few folks have asked me to help them understand the trial currently underway in Manhattan, and with a jury verdict likely soon, I thought I’d post my thoughts on this.
Undisputed Facts
Porn actress Stephanie Gregory, aka “Stormy Daniels”, claims to have had a sexual affair with Trump back in 2006.
Trump denies ever having intimate relations with Daniels
In October 2016, weeks before the election, Daniels signed a Non-disclosure Agreement (NDA), in which she agreed not to speak of any supposed affair.
The NDA was handled by Trump’s former attorney, Michael Cohen. Cohen paid Daniels $130,000 of his own funds in exchange for the NDA.
In January 2018 the Wall Street Journal reported on rumors of the affair and NDA. Daniels provided a statement denying any affair with Trump (“…it never happened.”
Two months later Daniels sued Trump claiming the NDA was invalid because, while she had signed it, Trump never did. The lawsuit was settled through arbitration, resulting in an agreement including Daniels abiding by the NDA.
Three weeks later Daniels broke this agreement in an interview with 60 Minutes.
The following month Daniels filed a libel suit against Daniels. She lost the case and appeal and was ordered to pay Trump and his attorneys $600,000.
In August 2018 Cohen accepted a plea deal from prosecutors in exchange for cooperation against Trump. He also offered to invalidate the NDA if Daniels repaid him the $130,000. She declined and kept the money.
Cohen, a convicted felon and disbarred lawyer, has admittedly committed perjury, including before Congress and in federal courts, and found to have done so again as recently as this year. He also admitted during his testimony that he stole $60,000 from Trump, and appears to have been caught in yet another lie during his testimony.
NDAs are NOT illegal
Paying someone to keep quiet (“hush money”) is NOT illegal.
Cohen’s Version
Cohen initially said that he arranged the NDA on his own and paid for it out of his own pocket. He initially said that he did it because Trump was worried about his wife Melania’s reaction if she heard about the rumored affair.
After agreeing to a plea deal, Cohen changed his story, now saying that Trump wanted the story hidden because it would damage his election changes by angering female voters. He said that the payment was repaid through a series of payments claimed as “legal fees”. Cohen claims Trump had full knowledge of the deal.
The charges
Trump is charged with 34 felony counts of falsifying business records. Falsifying business records is a misdemeanor, unless it is done to conceal other crimes. The prosecution claims the records were falsified to conceal the crime of campaign finance violations. They claim that the payments to Daniels, through Cohen, constituted a campaign expenditure since it was intended to help his campaign. Because personal, not campaign funds were used and it wasn’t reported as a campaign expenditure, they’re claiming that constitutes a crime of campaign finance violations. Though the statute of limitations has long expired for any campaign finance violations, this is the underlying “crime” used to support the felony charges. The business documents they accuse Trump of falsifying are related to the payments made and labeled as “legal services” instead of something like “campaign expenses / payoff to porn star to keep quiet about alleged affair”.
The Judge
In my opinion, the judge in this case has been awful. With his obvious conflicts, including both his immediate family member making millions by working for Trump’s opponents, as well as his own personal cash donations to Trump’s opponent, he shouldn’t be presiding anyway. But even so, many of his rulings are bizarre.
Gag orders are designed to preserve a defendant’s right to a fair trial. They’re almost never used to gag a defendant, and especially not unilaterally gag a defendant (ie Trump is gagged, but prosecutors and witnesses against him are not). It’s likely unconstitutional.
The judge struck down nearly all of the defense objections, while sustaining nearly all prosecution objections. He at one point admonished the defense for objecting so much.
He then allowed inflammatory and completely irrelevant testimony in from Daniels. When the defense asked to have it stricken, the judge said he was surprised the defense hadn’t objected sooner (after his prior admonishment earlier), but he allowed the testimony anyway.
When a Trump witness was on the stand the judge blew up at him (in front of the jury), then cleared the courtroom and told the witness if he rolled his eyes again he’d remove him from the stand and have his testimony stricken. This is clearly a violation of the defendant’s 6th amendment rights; “In all criminal prosecutions, the accused shall enjoy the right to…to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
Conclusion
This is the most farcical trial I’ve ever seen. Indeed, no reasonable prosecutor would put a convicted serial perjurer on the stand as their prime witness; no reasonable prosecutor would allow a witness to admit to Grand Larceny on the stand, a higher grade felony than the charges the defendant is charged with, with complete immunity. No reasonable prosecutor would use a theory of law that strains credibility. No ordinary citizen would ever face this type of trial, ever.
Yet these aren’t reasonable times, and Trump is no ordinary citizen.
Trump is on trial for supposedly using personal money for campaign expenses and reporting it as legal services.
Suppose he had used campaign funds to make the “hush money” payment; does anybody actually believe they wouldn’t then be charging him with other crimes such as the fraudulent use of campaign funds? Of course they would.
President Biden won Manhattan 85% v. 15%. There is no way a Manhattan jury quits a man as politically charged as Trump. The best he can hope for is a mistrial, and a redo. But it’s already served its purpose.
Stormy Daniels collected the $130,000 and kept it even after violating the NDA. She also never paid the $1,000,000 per violation penalty the agreement required for each violation. She’s since made millions from appearances and book sales.
Stormy Daniels is the winner. Our justice system is the biggest loser.
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