"What Could Go Wrong?"

In July of 2006, Stormy Daniels met Donald Trump at a Lake Tahoe celebrity golf tournament. Today in court, she testified that initially, she didn’t want to have dinner with him when she received an invite. But she was persuaded by her publicist, who said, “It’ll make a great story. He’s a business guy. What could possibly go wrong?” 

Indeed.

Her testimony was damaging enough to the defense that they ultimately moved for a mistrial, which the Judge denied. But not without repeated warnings to the prosecution to avoid unnecessary detail and sustained objections to the government’s questions. The repeated objections, which were made in front of the jury, come at a cost though—they make it look as though Trump has something to hide.

The crux of the objection was Daniels’ testimony that after some details of her tryst with Trump became public, she was approached by a man in a Las Vegas parking lot while she was with her young daughter. She perceived the approach as a threat but didn’t report it to the police at the time. The Judge will issue a limiting order to the jury on the purpose they can consider that testimony for, telling them they cannot use it as evidence of bad character or criminal purpose against Trump. He also told the defense “You have the remedy of cross-examination.”

But cross-examination wasn’t much of a remedy today. It will continue tomorrow, but defense lawyer Susan Necheles struggled to make any points off of Stormy Daniels. She used a scattershot of questions designed to paint Daniels as a liar and an opportunist trying to make a buck. Daniels responded with remarkable candor. Jurors may not like what she did, but she helped fill in gaps in the story of the crime that would have existed had she not been called to the witness stand.

Daniels’ testimony was a necessity for the prosecution. Despite the uncertainty her testimony presented—she is no friend to them—without it, the jury would have had questions about why she didn’t testify. And that is the kind of question that leads to uncertainty and doubt, something the prosecution can’t afford to have on their minds. And through her testimony, the jury just got a direct lesson in precisely how important it was to Trump and the campaign, in the climate that followed the release of the Access Hollywood tape, that Stormy Daniels' story be squelched. The jury had already heard Hope Hicks’ testimony that campaign staff who learned about it were worried. Now the jury can appreciate the motivation that led to the crime and how it was motivated by the upcoming election. Remember, this was 2016 and Trump was vulnerable in that moment in a way he no longer seems to be; today, all of Trump's bad conduct is baked in and his base supports him nonetheless.

All in all, the prosecution’s case is going well. Stormy Daniels’ testimony was a second day of successful testimony this week. Yesterday was about the documents that constitute the fraudulent records. Despite what you may have seen elsewhere, and even though this sort of testimony about documents involves a certain level of tedium, jurors tend to pay close attention when prosecutors present this essential evidence and offer testimony that explains it.

The most important documentary evidence yesterday was Exhibits 35 and 36. The bank statement from Michael Cohen showing that he paid Daniels the hush money is Exhibit 35. The prosecution may not have Trump’s longtime employee Allen Weisselberg testifying in this case (unless he’s an unlikely last-minute surprise witness), but they have his notes, handwritten and identified by his colleague of 35 years, Jeffrey McConney. Those notes show the $130,000 payment Cohen made to Daniels. They go on to reflect additional amounts added on to “gross up” the payment. What does that mean? McConney spells it out in his own notes, Exhibit 36. That exhibit and McConney’s testimony confirmed that they calculated the amount Cohen needed reimbursed in order to keep him from going out of pocket. Since his payment to Daniels was disguised as income for legal work, he would have to pay taxes on it, so the amount necessary to cover that expense had to be added on.

Ex 35-Weisselberg’s handwriting on Michael Cohen's bank statement reflecting payment of hush money.

Ex 36-McConney’s notes on how Weisselberg told him to arrange the payments, including the notation “x2 for taxes.”

It’s rare to see folks put the key to a criminal conspiracy in writing, but here it is. It’s great evidence for the prosecution.

The biggest challenge for the prosecution in this case is linking Trump to the fraudulent business records and the crimes they aided or concealed. Michael Cohen will testify about his direct interactions with Trump. But Cohen comes with baggage and credibility issues. So the prosecution will stack up other evidence to support him. That’s why they put on evidence today from Trump’s books, where he wrote about the need for a good businessman to pay attention to the details and keep tight financial control of his interests. Yesterday, there was testimony from Trump Organization witnesses that only Trump could sign checks on his personal account—the place where the payments to Michael Cohen came from. All of the evidence in this regard will permit prosecutors to argue that it defies common sense to believe Donald Trump, whose own lawyers characterized as frugal, would double the retainer payment owed to his lawyer and give him a $60,000 bonus on top. Jeffrey McConney testified yesterday about how careful Trump was with his money, even joking that he was fired early on during his time as a Trump employee. McConney said it was a teaching moment from Trump, who wanted him to negotiate his bills to minimize what he was spending. That’s not someone who casually agrees to double the $130,000 and put a cherry on top in the form of a bonus.

But that’s the way those payments worked out, per Weisselberg and McConney’s notes and Cohen’s expected testimony. At a minimum, Trump would have asked questions before payments like that came out of his personal funds. The checks were sent to him at the White House for signature, with the invoices attached. He could have refused to sign them, something there was testimony he did when he had questions. That’s how the prosecution builds a foundation for Cohen’s testimony that is too strong to be shaken by any reasonable doubts. Mere speculation is not enough to avoid a verdict of guilt.

Prosecutor Matthew Colangelo asked McConney: are you aware of another instance where an expense reimbursement was doubled to account for taxes? The response was, no. This was a singular moment. This testimony, all taken together, is how prosecutors get past reasonable doubt.

Prosecutors also made a brilliant decision, calling a witness from Trump’s publisher who testified to some of what was in his books. Among the comments, Trump bragged he was a micromanager and boasted about “penny-pinching.” In “Think Like a Billionaire” he wrote: “Always look at the numbers yourself. If things turn grim, you’re the one left holding the checkbook.” There’s substantial evidence from all sides that Trump knew about and approved the plan for Cohen to pay Stormy Daniels and then be reimbursed. Where would the incentive be for Trump to approve after the fact and after the election once Cohen had paid—he barely paid his legitimate bills. And knowing that about him, why would Cohen have run the risk, borrowing against his own house?

All of this testimony, everything that suggests Trump knew and was involved, is the buildup to Michael Cohen’s testimony. The prosecution is doing everything they can to corroborate him in advance. Tomorrow, Stormy Daniels’ cross-examination continues. If it has been sharp and acerbic at points, it’s nothing compared to what is coming with Cohen!

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We’re in this together,

Joyce