When the Assistant District of Manhattan. Lawyer. Susan Hoffinger announced on Tuesday, day 13 of the hush money trial against Donald Trump, that “people call Stormy Daniel”, a perceptible tremor of anticipation was heard among the jurors. Although the 34 criminal offenses charged against Trump are legally peripheral to his interactions with the adult film star, Daniels is central to the drama that prosecutors have been laying out for the jury.
The seven men and five women charged with determining the former president's guilt had heard from multiple points of view about the woman whose allegation of a sexual encounter with Trump in 2006 had sparked an existential crisis in her campaign. Daniels was the driving force behind the entire distasteful payment that allegedly required the elaborate document manipulation that is the subject of the New York indictment.
Then the jury noticed and listened attentively to his story. It's both a kind of classic American tale about a rise to success from rocky beginnings and an, well, exotic narrative from a world that's presumably foreign to the jury, one of not just adult films but also celebrity golf tournaments, famous athletes and cavernous hotel suites.
Daniels' presentation reflected these conflicting forces. On the one hand, she seemed intelligent, worldly, and proud of her accomplishments. But she also spoke of having had half-conscious sexual relations with an older, powerful man whom she found repulsive in many ways, leaving her confused and stupefied.
He also spoke very quickly, perhaps betraying nervousness, and his answers often strayed far from what the questions asked for. This caused Judge Juan M. Merchán to respond more than once with evident resentment, at one point interposing (and sustaining) his own objection. Like most good trial judges, Merchan seems to command respect from jurors, so his protests are likely to affect their view of the witness.
Merchan had sought to set up barriers to prevent testimony about essentially gratuitous details that are far removed from the criminal charges and could prejudice the jury against Trump. And sure enough, after the prosecutor's direct examination of Daniels, the defense moved for a mistrial, citing her account of such repugnant details as Trump's failure to use a condom.
Even more than the salacious details, Daniels' testimony raised a problem by suggesting that her alleged encounter with Trump was in some sense coercive. Although she repeatedly testified that she was not forced to have sexual relations with the defendant, she also noted her greater physical size, the unbalanced power dynamic between them, and her care to keep their subsequent encounters public.
Merchan denied the mistrial motion, noting that Daniels was somewhat of a difficult witness to control. He can be sure the issue will come up on appeal should Trump be found guilty.
At the same time, Trump lawyer Susan Necheles's cross-examination of Daniels had its own problems and may have increased the jury's sympathy for the witness. Necheles continually accused Daniels of being a liar and a gold digger. The questions occasionally caused Daniels to bristle, but he more often waved them off with a flat “false” or “no.” That, along with frequent arguments between the judge and attorneys, disrupted the pace of the exchange, which lacked the crisp control and momentum of effective cross-examination.
So Daniels' testimony carries potential risks and rewards for both sides, and it's not easy to gauge how it will work together.
From the prosecution's point of view, the legal basis for the hush payment and the alleged fabrication of documents does not depend on whether the jury believes Daniels. In fact, several analysts suggested that the district attorney would have been better off not calling her at all.
What that analysis overlooks, however, is the jury's natural desire to take the measure of the woman who fueled the crisis and about whom they had heard so much. Not calling her risked leaving them wondering what the prosecution was hiding.
On the other hand, if a good portion of the jury didn't like Daniels or, worse yet, didn't believe him, that could negatively influence their deliberations.
From Trump's point of view, the risks are greater. This is largely because his vanity and arrogance have forced his attorneys to unnecessarily insist that he never had sexual relations with Daniels. Consequently, if the jury believes the foundations of his story, they discredit Trump.
And it is very difficult to see how the jury could adopt Trump's absolutist account, including his claim that he met Daniels only once at a celebrity golf tournament. For starters, the evidence that they met several times afterward is basically indisputable.
The next day of the trial, on Thursday, will begin with the balance of the cross-examination followed by the reorientation of the government. Both sides will have studied the transcripts and adjusted their approaches. However, it is likely that the 12 most important people in the courtroom have formed their fundamental impressions of the witness. More than with any other witness in this trial to date, the nature and meaning of those impressions are unpredictable.
That said, his overall story was credible and was furthermore corroborated by other witnesses in most, if not all, of the important details. After watching the jury carefully from my seat in the courtroom on Tuesday, I think Daniels did what he needed to do.
Harry Litman is the host of Podcast “Talking about federals” and the Talking about San Diego Speaker series. @harrylitman
