Trump’s Play For Jury Nullification Becomes Clear During Cross-Exam Of Stormy Daniels

NEW YORK — Attorneys for Donald Trump sought during hours of cross examination of Stormy Daniels on Tuesday and Thursday to portray her as a fabricator and extortionist, a woman with no regard for the truth who preyed on a rich man for a quick buck.

Daniels, defense attorney Susan Necheles suggested, was more than a porn star. She was a savvy businesswoman who had parlayed her encounter with Trump into a series of enterprises: merchandise including a T-shirt line and a “Stormy Saint of Indictments” votive candle, a documentary, an $800,000 book deal, and much more. She’s a kook as well, Necheles suggested: a talented storyteller equally comfortable writing convincing sex scenes for adult films as creating a podcast about the paranormal which hinted that she had the ability to commune with the dead.

The defense sought to cast Daniels, in short, as a talented con artist who knows how to weave together convincing, but improbable stories involving sex, and apply leverage to cash in on them.

That description of what Daniels was up to was extremely evocative.

But here’s the thing: Trump isn’t alleged to have engaged in the business records falsification scheme because he was being extorted by an enterprising con artist. Instead, prosecutors allege, he was acting in response to the story Daniels had to tell — regardless of whether it was true or false, and regardless of whether he was being, or felt, extorted. He sought to “suppress” Daniels’ “account,” the statement of facts reads, with an eye toward not having the story affect the presidential race.

As prosecutor Joshua Steinglass put it at a hearing at close of court on Thursday, the explosive details that Daniels had to offer are at the heart of the prosecution’s case.

“Those messy details — that is motive,” Steinglass told Judge Merchan. “That was Mr. Trump’s motive to silence her story.”

It’s a subtle difference. But it’s critical to understanding the significance of Daniels’ testimony, and how the defense’s aggressive cross examination fits — or doesn’t fit — with what prosecutors allege.

The Manhattan District Attorney’s Office’s case against Trump is composed of 34 counts of falsification of business records, upgraded to a felony because he allegedly faked the records in furtherance of a campaign finance conspiracy. In the story that prosecutors tell, Trump went to extraordinary lengths to cover up his reimbursement to Michael Cohen for the hush money scheme — by falsifying the business records.

In that telling, whether Daniels was telling the truth or lying, and whether she was extorting Trump or innocently shopping her story around, is largely irrelevant. From that perspective, it’s Trump’s response to Daniels’ story — in all its detail — that matters.

For Necheles, casting Daniels as a greedy fabricator represented a tradeoff. On the one side, it concedes that the story had grave potential to damage Trump, thus also conceding the motive for the conspiracy prosecutors allege. It’s almost a stipulation to the prosecution’s contention that, in particular after the release of the Access Hollywood tape, Trump could not afford to have Daniels telling her story in public.

The potential advantage for the defense comes in a few ways. One is that it could help generate sympathy with the jury. As Necheles presented it, Daniels used her talents at fabrication and seamy storytelling to target Trump in the vulnerable final weeks of his campaign, shaking him down for money. Paying her off isn’t illegal — and if he falsified the records, it was for a completely understandable reason: to avoid public humiliation.

To create that impression, Necheles questioned Daniels about her work not only as a porn actress, but as a director. Through this line of questioning, Necheles attempted to show that Daniels was skilled at weaving fake stories about sex.

“You have a lot of experience of making phony stories about sex appear to be real?” Necheles asked Daniels.

Daniels replied with shock. “Wow,” before adding: “The sex in the films is very much real, just like what happened to me in that room.”

She added: “If that story was untrue, I would have written it to be a lot better.”

At times, Necheles strategy seemed to approach an attempt at jury nullification — when members of a jury disregard the case mounted and the evidence of crimes charged and instead acquit because they disagree with the law or the way in which prosecutors applied it. The defense implicitly asked the panel to find that Daniels had acted so outrageously as to compel Trump to do anything to defend himself. It also left the former president in his favored rhetorical pose: that of a victim.

Necheles’ tack here took her into the world of the occult and the paranormal. She peppered Daniels with questions about her ventures probing the hereafter, asking her if she had claimed to be able to communicate with the dead. They also asked about an episode in which she claimed to have resided in a haunted house in New Orleans, where she claimed that a “spirit attacked her boyfriend.”

“Isn’t it a fact that you’re the one who attacked your boyfriend?” Necheles asked. A prosecutor objected, and Merchan sustained it, before Daniels could answer.

Daniels eventually said the “interesting and unexplained activity” in the house was “completely debunked as a giant possum” living underneath it.

It may have left Daniels as appearing somewhat kooky, but it’s not clear what significance it has for the underlying charges. Those, again, involve Trump’s response to Daniels, not the veracity of her story.

This provocative defense reached its peak at the very end of cross-examination, when Necheles asked Daniels: Was it true that she had spent twelve years lying about a sexual encounter that never happened?

Merchan sustained an objection to the question.