Trump’s Need for Retaliation Could Undermine His Defense
He apparently pushed his lawyers to be more aggressive in questioning Stormy Daniels—at the risk of losing the jury.
THE CROSS-EXAMINATION OF STORMY DANIELS picked up today where it left off Tuesday in Donald Trump’s Manhattan trial, with defense attorney Susan Necheles’s argumentative questioning of the porn star at the center of the 2016 case involving Trump hiding information from voters. One thing that’s striking: Necheles’s questions seemed more contoured to her client’s desire to retaliate than to advance the defense’s theory of the case. Trump was reported to be enjoying it. But with Daniels’s scrappy answers and apparent authenticity, the belabored back-and-forth may have distracted the jury from the Trump team’s legal defense.
Let’s set the scene: Trump, recall, is being prosecuted for falsifying business records to cover up the buying of Daniel’s silence just before the 2016 election. She gave chilling testimony Tuesday morning about their sexual encounter in a Lake Tahoe hotel, where, as she described it, his behavior was loutish and predatory.
Necheles, an experienced defense lawyer on Trump’s team, started off Thursday with questions pressing hard on the view that Daniels is an extortionist. While it’s easy to second-guess a cross-examination from afar, Necheles seemed to be making unforced errors.
Her aggressive approach, and her prolonging of the cross-examination Thursday with nitpicks about whether Daniels and Trump actually had dinner together, appeared to go far afield—and seemed at odds with the opening statement made by her colleague on Trump’s legal team, Todd Blanche. By the time Daniels left the stand shortly after noon on Thursday, an observer might have been left wondering if Necheles’s tactics had been dictated by a willful client who thinks he always knows best.
HERE’S THE BACKGROUND: In October 2016, Michael Cohen, Trump’s one-time lawyer and fixer, paid Daniels $130,000 to keep her quiet days before the 2016 election and days after the blockbuster Access Hollywood story broke. In the trial last week, Hope Hicks, Trump’s confidante and aide, testified that at that fragile campaign moment, her boss was concerned about the effect of more sexual scandals on his presidential prospects. According to prosecutors, after the election, Trump caused business records to be falsified to bury the pre-election pay-off and its purpose—keeping the truth from voters.
Daniels testified that Trump told her that she reminded him of his daughter. “You’re smart and you’re blond,” Daniels recalled Trump saying. (It’s hard to imagine a pickup line where the empty flattery of the first part is better betrayed by the shallowness of the second.) Trump’s comparison of his daughter to an adult film actress he was trying to have sex with might clank against the jury’s memory of Blanche’s opening statement. His pitch was that Trump was a husband and father “just like you and me.”
Jurors do not forget such things. When actual testimony turns on its head what a lawyer said in his opening words to them, it’s never good for his client.
For Trump, it must have been excruciating to have the world hear that it wasn’t his charm that got him what he wanted from Daniels that evening in his hotel room. Even though she did not say that he forced her, she testified to being startled at seeing him suddenly in his underwear when she emerged from a restroom visit, the hotel room spinning, and his looming physical presence when she went for the door. No wonder Trump was heard cursing during her testimony.
Trump reportedly kept elbowing Necheles to object when her trial experience had her refraining. Nonetheless, she did as instructed.
That was a clue—and may explain why, during her later cross-examination of Daniels, she took a sledgehammer to the task, counterattacking Daniels at length and aggressively . . . in Trump’s own style.
Necheles’s questioning departed from the more sophisticated defense strategy toward Daniels foreshadowed in Blanche’s opening statement. He told jurors that Daniels’s “testimony, while salacious, does not matter.” Blanche explained that Daniels had “no idea” about the meat-and-potatoes of the charges against Trump—the business records prosecutors must prove he falsified.
The way to hammer home on cross-examination her testimony’s legal irrelevance would have been to begin and end asking Daniels a series of staccato questions. “You know nothing about Mr. Cohen’s invoices, do you?” “You know nothing about Mr. Trump’s payments to Cohen, correct?” “You know nothing about how the Trump Organization recorded its payments to Cohen in their books, right?”
If you sat down right there, after her string of no’s in response, it would send an indelible message to the jury of her testimony’s meaninglessness to Trump’s defense. But that would involve a tacit admission that the sexual episode happened, and Trump won’t tolerate any such concession, even if true and helpful legally.
Sure, a lawyer might also quickly ask Daniels questions pointing out inconsistencies and other flaws in her testimony. But Necheles adopted a hammer-and-tongs approach. She reportedly even got into a yelling match with Daniels, something that rarely works. On Thursday, Necheles doubled down, taking on Daniels’s entire testimony: “You’re making this up as you sit there, right?”
And again: “You have a lot of experience making phony stories about sex appear real,” Necheles pressed. Daniels’s devastating response: “Wow . . . that’s not how I would put it. The sex in the films is very much real—just like what happened to me in that room. . . . The sex is very real. That’s why it’s pornography and not a B movie.”
Necheles was fighting a battle she didn’t need to fight and might well lose. The jury is going to have a hard time believing that Daniels fabricated her detailed testimony about how and where she met Trump, the specific series of questions he asked her in his hotel room about the adult film industry and its testing for STDs, and what the tile looked like on the hotel bathroom floor. Especially when she’s careful to acknowledge that the defendant did not force her to have sex with him.
In all likelihood, Necheles’s frontal attacks on Daniels as a complete fabulist were what Trump commanded. Over the years we’ve observed his compulsion to retaliate in kind against verbal attacks that he experiences as threats to his cultivated image of invulnerability. He fears humiliation and invariably overcompensates by constantly portraying himself as someone “perfect” in his conduct.
And so, on trial, he apparently forces his lawyers to overreach, adopting trial tactics that undermine for jurors the credibility of his defense. There’s a lesson here about the risk of treating a courtroom like a public-relations venture and a trial as the foundation for a campaign narrative. Doing so carries enormous risk of legal self-destruction and the political damage that polls show may follow.
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