On Stormy Daniels’ Testimony

We’ve been elsewhere a good bit recently, removed – in some ways, blessedly – from the daily vicissitudes of our time.  We find that – like the first view, 50 years ago, of my sainted mother’s soap opera after a semester away at college — little has changed, with the vital exception of the passage of the Ukraine aid package.  What has prompted this note regarding the May 7 testimony of Adult Film Star Stephanie Clifford (a/k/a “Stormy Daniels”), in the case the New York City Manhattan District Attorney is now prosecuting against former President Donald Trump for falsification of business records, is the debate I heard between a couple of legal commentators as to whether, from the perspective of trial strategy, the prosecution had been wise or foolish to have Ms. Clifford testify regarding her alleged 2006 sexual encounter with Mr. Trump in such detail that even Presiding Judge Juan Merchan observed that her account might have been unnecessarily … informative.  I heard one legal pundit opine that what might be argued to be prosecutorial excess could provide grounds for reversal on appeal if Mr. Trump is ultimately convicted.

In law school, they tell you that they’ll train you to “think like a lawyer.”  The debate about trial strategy is the kind of question that intrigues lawyers.  Although I understand the misgivings of the lawyer concerned about the potential consequences of prosecutorial overreach, I think he is missing the main point.

First, for reasons I find inexplicable considering all of the other boundaries of social decorum that Mr. Trump has flouted over the last decade, the former president continues to deny his tryst with Ms. Daniels.  Of course it occurred.  I suspect that even Mr. Trump’s most fervent admirers believe that it happened.  If it had not occurred, there is no reason why Mr. Trump – notoriously cheap with his own money – would have yielded to Ms. Clifford’s demands for payment in the last days of the 2016 campaign, or that Mr. Trump’s attorney and “fixer,” Michael Cohen, would have engaged in the machinations he did to get Ms. Clifford her money.  The only way the jury might have doubts about whether the episode occurred would be if the prosecution didn’t put Ms. Clifford on the stand.

Second, since Mr. Trump is denying that the episode occurred, having Ms. Clifford provide details of the liaison – among the most benign, that Mr. Trump was then using Old Spice — provided credibility to her account.  Having her simply testify, “We had sex,” would have been insufficient.  Recall that Monica Lewinsky’s descriptions of her encounters with former President Bill Clinton were buttressed by her description of a certain generally hidden part of Mr. Clinton’s anatomy later independently confirmed.  Although some aspects of the tryst Ms. Clifford described have been characterized as “salacious,” I would suggest that no participant in any consensual sexual encounter, required to thereafter describe its particulars in an antiseptic courtroom, could do so without sounding salacious.

An aside:  Ms. Clifford was an acknowledged adult film actress when she was invited to have dinner with Mr. Trump in his suite.  For anyone that knew Mr. Trump at all:  What did she think he intended?

All that said, what I consider the main point:  Since it is widely held by Constitutional scholars that Mr. Trump can serve as president even if he is convicted, it doesn’t substantively matter whether the conviction is ultimately overturned on appeal after the 2024 presidential election.  However, if the titillating details Ms. Clifford placed in the record make it more likely that the prosecution will secure a conviction that adversely affects the former president’s 2024 presidential prospects, such is all that counts.  (There is obviously the concern that if Judge Merchan thought that the prosecution was excessive, perhaps members of the jury think so as well, which could redound to Mr. Trump’s benefit.)

By outward appearances, the trial is wearing Mr. Trump down.  At the same time, I continue to have deep concerns about the boost his campaign will receive from either an acquittal or a hung jury.

We’ll see what happens.