Daniels, the adult-film actress whose hush money payment is at the center of Trump’s criminal trial, took the stand Tuesday and described in great detail a one-night stand she said she had with Trump in 2006. At times, her description made it sound like the sex could be viewed as nonconsensual.
Podcast episode
That ignited tensions in the courtroom, with Trump’s attorney saying such disparaging allegations are not relevant to the case and could prejudice the jury deciding the fate of the former president and presumptive Republican presidential nominee. The defense attorneys’ cross examination of Daniels is expected to continue Thursday.
Here are our key takeaways from the day, and if you’d like a refresher, here’s some background on what the case is about.
(Like what you’re reading? If so, sign up here to get the Trump Trials newsletter in your inbox every Sunday.)
In a case about bank records, the jury is hearing a lot about sex
The jury must decide whether Trump falsified financial documents related to the hush money payment to Daniels, and whether he did it in an effort to conceal election-related crimes. But Daniels spent much of Tuesday morning offering very specific details of the alleged sexual encounter that prompted the hush money payment in the first place. The jury learned that — per Daniels — Trump didn’t wear a condom, the position they had sex in, that Daniels had her bra on and more.
None of these details deal directly with the criminal allegations against Trump: that he reimbursed his lawyer for the hush money payment and classified that payment as a legal, rather than a campaign, expense. But Trump has denied that he and Daniels had a sexual encounter, and prosecutors presumably wanted her to share details to build her credibility with the jury and establish that an encounter that Trump wanted to cover up actually occurred.
Trump’s team argued that the judge allowed Daniels to say too much
Even before Daniels appeared in court Tuesday, prosecutors and defense lawyers argued about the value of her testimony. Defense attorney Susan Necheles said the defense objected to Daniels testifying about explicit sexual details, arguing that “this is a case about books and records.” Prosecutors said they would limit explicit details of sex acts, and the judge said he would allow the questions.
Still, Daniels described just about every aspect of a sexual encounter with Trump that she said she did not want to have, but did not resist. Another Trump attorney, Todd Blanche, returned from the lunch break and called for a mistrial. He said that implying that the sex was nonconsensual was “extraordinarily prejudicial” and has nothing to do with the charges in the indictment.
Merchan ruled that a mistrial was not warranted, even as he conceded that there were some things that the jury should not have heard. He said that as a witness, Daniels was a “little difficult to control,” adding that he was surprised that Trump’s attorneys did not make more objections while she was testifying.
“The defense has to take some responsibility for that,” Merchan said.
Trump’s team could appeal the ‘no mistrial’ decision
If the jury convicts Trump, his defense attorneys could try to appeal the conviction, arguing to a higher court that Merchan allowed unnecessary prejudicial testimony into the trial.
Any motion or objection the defense makes that is denied by the trial judge provides an opportunity to appeal — but winning an appeal is not easy, said Anna G. Cominsky, a law professor at New York Law School. “The real question is even if the judge erred in his decision whether it would provide a basis to overturn the verdict on appeal, and that is a high bar,” she said in an email.
Last month, a New York appeals court threw out Harvey Weinstein’s sex-crimes conviction, saying that it did so in part because his trial judge “erroneously admitted testimony of uncharged, alleged prior sexual acts.”
Trump, of course, is not charged with sex-related crimes.
Cross-examination became an all-out battle between Trump’s attorney and Daniels
The often combative and tense questioning of Daniels by Trump’s legal team focused on whether she hates the former president and if she made money off their alleged sexual encounter. Necheles pointed to a defamation case filed by Daniels against Trump in California that was dismissed, with Daniels ordered to pay more than $293,000 for Trump’s legal fees.
Daniels said she has not paid Trump that money, with Necheles suggesting that Daniels has a financial incentive to see Trump in jail.
“You’ve been making money by claiming you had sex with Donald Trump for more than a decade, correct?” Necheles asked.
Daniels, who wrote a book that described her alleged 2006 sexual encounter with Trump, agreed.
Question time
Q. What happens if the judge throws Trump in jail for violating the gag order? Would the trial be put on hold for the duration of his sentence?
A. If Trump is sent to jail (and that’s a big, big if — Merchan said Monday that he would be extremely reluctant to take such a step), he would be brought to the courtroom each day for trial. But it would be a logistical nightmare, according to Cominsky, the New York Law School professor.
Currently, Trump arrives to court in his motorcade. If he was in jail, state officials and Secret Service would need to coordinate the transportation. Cominsky said there is some speculation that he would need to be placed in a federal detention because his Secret Service protection means that he could not be housed with the general population in a city jail. If that happens, that would mean federal and state law enforcement and the Secret Service would need to coordinate his transportation each day, which Cominsky said “equals three times the red tape.” And during breaks in the court proceedings, he would not be free to go in the hallway or leave for lunch.
“Instead, he would have to be brought to a secure holding facility until court resumes and then, of course, brought back,” Cominsky said. “More time wasted.”
Have more questions on this or upcoming trials? Email us at perry.stein@washpost.com and devlin.barrett@washpost.com and check for answers in future newsletters.
Thanks for reading this edition of our mid-trial newsletter updates. You can find past issues of The Trump Trials here.
