The Stormy Daniels Sex Trial The salacious details of her testimony were irrelevant to the charges against Trump.
Love him or loathe him, Donald Trump is entitled to the presumption of innocence and a fair trial, not the sleazy scene that New York prosecutors produced Tuesday after calling Stormy Daniels to the witness stand. What the jurors thought of her detailed account, to use a euphemism, is anyone’s guess. But the judge denied a mistrial on grounds of prejudicial testimony, and now Mr. Trump will surely add this to his reasons for appeal if convicted.
As a refresher on the facts, Ms. Daniels has said she and Mr. Trump had sex once in 2006. Mr. Trump denies it. But his fixer Michael Cohen paid $130,000 to keep Ms. Daniels quiet before the 2016 election. Now Mr. Trump stands accused of falsifying business records to conceal his reimbursement to Mr. Cohen. The ostensible point of putting Ms. Daniels on the stand is for prosecutors to show the jury she’s credible, and that Mr. Trump would be highly motivated to cover it all up.
Her testimony was never going to reflect well on Mr. Trump, but the level of irrelevant detail prosecutors coaxed out of Ms. Daniels was egregious. Her recollection of what happened in Mr. Trump’s hotel room that day was almost a play by play: where, how, what articles of clothing were on and off. The jury doesn’t require the salacious details of an alleged extramarital affair two decades ago.
Then there were Ms. Daniels’s insinuations of coercion. She told “60 Minutes” in 2018 that she wasn’t attracted to Mr. Trump and didn’t want to have sex with him, but she “didn’t say no” and agreed it was entirely consensual. In her book, she called it “an out-of-body experience.” On Tuesday she testified to the jury that Mr. Trump stood up between her and the door, blocking the way, and she “blacked out,” despite not consuming drugs or alcohol.
Mr. Trump’s lawyers are expected to resume questioning Ms. Daniels on Thursday, but regardless of their success at impeaching the credibility of her story, the proceeding is now far afield of its legal basis. Asked by the defense to declare a mistrial, Judge Juan Merchan declined, but he acknowledged that some of Ms. Daniels’s testimony was “better left unsaid.” He also blamed Mr. Trump’s team for not objecting more strenuously and said that “the remedy is on cross-examination.”
That doesn’t cut it. Judge Merchan is supposed to balance the evidentiary value of testimony against its potential to unfairly prejudice the jury against the defendant. Will jurors be disposed against Mr. Trump now, before they even get to the business records? A New York court recently overturned the conviction of Harvey Weinstein on grounds that the trial judge unfairly let the DA introduce inadmissible testimony that prejudiced jurors.
Prosecutors could have sought the minimum needed to establish Ms. Daniels’s story, but instead they asked for needless specifics, and the judge allowed it. It’s easy to believe the prosecution’s goal was as much to humiliate Mr. Trump before voters as it was to sway the jury that Mr. Trump is a sexual predator.
After three weeks of witnesses, Manhattan District Attorney Alvin Bragg still hasn’t come close to making his case. Prosecutors need to prove, beyond reasonable doubt, that Mr. Trump falsified business records, and that he did so with intent to commit or cover up a second crime. Did Mr. Trump conceive that the Stormy payoff was an illegal campaign donation, or that the repayment to Mr. Cohen was tax fraud?
Perhaps the Bragg prosecutors are willing to go to this extreme because the other criminal cases against Mr. Trump may not go to trial before Election Day. The Jan. 6 case brought by special counsel Jack Smith against Mr. Trump is hung up at the Supreme Court over presidential immunity. On Tuesday federal Judge Aileen Cannon indefinitely postponed Mr. Trump’s trial for keeping classified files amid disputes over prosecutorial conduct. District Attorney Fani Willis has messed up the Georgia case to a fare-thee-well.
Those who want Mr. Trump convicted before November now see Mr. Bragg as their last best hope. Mr. Trump may still be convicted by the jury in heavily Democratic Manhattan. But the odds are growing that a conviction would be overturned on appeal.
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