Trump's Trials - Stormy moments in Trump's hush money trial

Episode Date: May 11, 2024

For this episode of Trump's Trials, host Scott Detrow speaks with NPR senior political editor and correspondent Domenico Montanaro and Boston University law professor Jed Shugerman. This week adult film actress Stormy Daniels testified about her alleged sexual encounter with former president Donald Trump in 2006. Daniels described the encounter, which Trump denies took place, in great detail. Although whether or not Trump and Daniels had sex is not what the jury will rule on, it is the alleged event that led to a payment 10 years later that lies at the heart of the case. Trump's former fixer Michael Cohen is expected to testify on Monday. His testimony will be key for the prosecution's case. And calling Cohen's testimony into question will be a top priority for Trump's defense team. Topics include:- Stormy Daniels' testimony - Stormy Daniels' impact on the case - Michael Cohen to testify Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

A stormy week in court. From NPR, this is Trump's Trials, I'm Scott Detrick. This is a persecution. He actually just stormed out of the courtroom. Innocent to a proven guilty in a court of law. It was arguably the most intense week of testimony we have seen in the New York criminal hush money trial, but the question hanging over everything is how much if it mattered to the prosecution's case. We started off with Judge Juan Marchand finding former President Donald Trump in contempt

for the tenth time and warning Trump that if he has another serious gag order violation, it could land the presidential candidate in jail. Then on Tuesday, adult film actress Stormy Daniels took the stand. In great detail, Daniels testified about how she met Trump in 2006 in Lake Tahoe. She also spoke at length about her alleged sexual encounter with Trump, which is something that Trump denies. Despite those denials, Daniels was paid off in 2016 in the heat of the presidential election to keep silent about the alleged encounter, and that payment is the foundation of the

alleged business fraud that lies at the foundation of the alleged business fraud that lies at the heart of this case. During cross-examination, Trump's attorney sought to pay Daniels as dishonest, money-hungry, and desperate. Whether it landed with the jury remains to be seen. We will get into all of it with someone I have never, ever called either an orange turd

or horse face on social media, my friend and colleague, Domenico Montanaro. Hey, Domenico. Yeah, not publicly. I've heard though behind my back what you say. To be clear, those are very real insults taken right from the trial transcript this week. Those phrases aside, which Daniels and Trump called each other on social media, what do we need to know about Daniel's testimony? Well during Daniel's first day of testimony, she really seemed a little nervous.

I mean, she was talking fast, making jokes. By day two, she was more relaxed. That's when we started to see some of these fireworks that we've been hearing about. Daniel had explained in great detail her sexual encounter with Trump. She spoke about going through his toiletry bag, seeing Trump in satin pajamas and not, and that she was motivated by wanting to get on The Apprentice, Trump's reality show. It all got really pretty sorted. During cross-examination, the defense went on the attack pretty hard. Trump's team accused Daniels of fabricating her story for fame

and money. At one point, the defense even suggested she might have made it all up for an adult film storyline. Daniel's fired back that if her story quote was untrue, I would have written it to be a lot better. So these details are about as base as you can get. Trump was seen at one point cursing under his breath. He was admonished by the judge to knock it off. But here's what we need to remember and why I bring this up. Trump has admitted to the payments but denies the sexual encounter. So Daniel's details go to how believable it is

that the encounter happened at all. But overall, this case is not even about whether Daniels and Trump had sex. It's not even about whether she was paid off. It's about whether Trump knowingly and intentionally falsified business records to hide the repayment to his then attorney, Michael Cohen, who we're going to be hearing from next week. All right, stick around.

We'll talk about all of it and more with Boston University law professor Jed Shuckerman. This message comes from NPR sponsor Organic Valley, a co-op of small organic family farms. Stony Pond farm owner Tyler Webb explains how they nourish their cows on their organic dairy farm. We do have to focus on feeding them top quality forages, utilizing rotational grazing methods to ensure that what the cows have access to is top quality nutrient-dense forages so that they can make top quality nutrient-dense milk. Learn more at ov.coop.org.

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We're back and we are joined by Boston University law professor Jed Sugarman. He wrote an op-ed titled, I Thought the Brag Case Against Trump Was a Legal Embarrassment. Now I Think It's a Historic Mistake. Jed, thanks for joining us. Thanks for having me. As the headline made clear, you had some thoughts on this as the beginning of the case. Before we get into what has happened in the trial, especially this week, tell us why you started out with this view.

A year ago, my concern was that a prosecutor had a duty at the stage to say more about why this case was being brought eight years after the crime had been committed and seven years after it was widely known. So instead of telling the public more about why he was reversing the previous Manhattan DA's decision not to pursue this case, he told us remarkably less.

And even a year later, after writing that op-ed, I think we still are confused about what's the theory behind why this is a felony. I'm still not clear about what the prosecutors are going to make as their closing argument because their opening statement was still unclear about why this business filing misdemeanor is turned into a felony for what other crime was being concealed. The initial argument was about election interference. The details this week were about sex in 2006. But like you said, the key alleged crime here is covering up a payment that might have violated campaign finance laws.

To be clear, federal, it's the campaign finance law is the Federal Election Campaign Act. This is the first time in American history any state prosecutor has tried to use the Federal Election Campaign Act in a prosecution either directly or indirectly. And my concern is that this is unprecedented and that once a precedent is set, other prosecutors may try this in other states. We're heading into the fourth week of witness testimony at this point. Are you more or less skeptical? What have you seen so far of the prosecution's case that sticks out to you? Well, the questions I'm raising are mostly legal questions that would be brought up on

an appeal in terms of once this trial is underway, the prosecutors have put the facts that we expected and once the trial judge let it go forward on those theories, it's going according to plan. The thing to spot for next week is how to address a remaining legal problem, which is proof of Trump's one, intent to defraud somebody, and second, proving intent to violate the Federal Election Campaign Act. And those both have to be proven beyond a reasonable doubt. So Domenico, the prosecution began its arguments by laying out the scope of the working relationship between the National Enquirer and Trump and the fact that the National Enquirer's top brass wanted to specifically help Trump in the election.

Then they talked about the panic after the Access Hollywood tape about how the Trump campaign was worried that things had fallen out of grasp and the desperation, according to the prosecution, to put these deals in place to keep these stories from getting out. But this week, the center of attention was the alleged sex act itself, the 2006 encounter between Stormy Daniels and Donald Trump in Lake Tahoe. To say it was tense in the courtroom may be an understatement.

It was uncomfortable. It was confrontational. It was a lot of other things. Can you just give a sense of the mood and the scene when Daniels was testifying? Yeah, I think that this is one of those testimonies where no one exactly knew where this was going. The guardrails were sort of blown over as even the judge himself had at times had to tell Daniels.

He kind of objected on his own for the Trump team, essentially saying that, you know, when the Trump team was upset about some of the details that she put forward, saying, hey, you guys could have objected more. In fact, I kind of interceded for you a couple times. And they sort of tried to remind the prosecution to keep her a little bit more within the ground rules. She was talking fast the first day,

telling then a lot of sordid details. You can imagine jurors who are also kind of sitting back and thinking, what does this have to do with the broader case? Trump himself, we talked about in other podcasts, is traditionally, normally, at least in the courtroom, somewhat subdued, maybe furrowed brows, looking down, some arguments on whether or not he's asleep. His eyes are closed a lot of the time, regardless of what's going on behind him, I guess. Yes, exactly. But, you know, he was clearly upset at times in this. In fact, he was admonished by the judge for cursing under his breath audibly at one point because Daniels had talked

about spanking him because he said he wanted her to and he said that's BS and that's not the words he used. So it got into a lot of stuff. Jed, thinking about the case that the prosecution needs to make, was this effective? Were these details needed? Was this a key part of the case? Trump and his lawyers made this inevitable. I mean there would have been a move to just stipulate, yes they had this relationship and it's private and a nonddisclosure agreement is perfectly legal.

That would have been the move. Whether it was his lawyers, but probably Trump himself who directed this and said, we want to deny that this relationship ever happened, they opened themselves up to this. And once they open themselves up to it, then the prosecutors need to put Stormy Daniels on the stand. And once she's on the stand, this is inevitably salacious, and I don't think it's grounds for mistrial. I think the judge ruled correctly on that so far.

You mentioned the mistrial request. The two different times Trump's legal team objected, saying this testimony is really putting the jury in a position against our client, specifically saying that Stormy Daniels was implying that the sex was non-consensual. Explain what Judge Marchand's response was when you shut that down.

Let me actually go bigger picture on why, the judge basically said the door is open to this and the judge actually admonished one of Trump's lawyers, Susan Necklis, for not objecting at a point where he thought an objection was appropriate. So the judge is very aware, but the judge is basically saying, I'm going to manage this objection by objection for specific things that come up. But one of the bigger picture questions is that, you know, things like those salacious

details you're mentioning are part of the prosecution's case for why there was an intent, not just about protecting his family or not letting Melania find out about it, but why it was relevant to a campaign. And some more of the salacious details actually help explain why Donald Trump would be worried at the moment after the NBC tape was released. Why this would be politically damaging and why that would be so relevant to voters

and to the campaign Motivation I want to look forward to Michael Cohen and next week and the fact that the prosecution has suggested that they might wrap their arguments next week, but but but first Domenico, I do want to just take another moment and talk about the politics here because This is a week where all of the sordid aspects of the Trump era that we've been living with, you know Remember Stormy Daniels first shared a lot of these details with the country in 60 minutes, six years ago at this point, you know. But very personal stuff, stuff that for a lot of other politicians would be disqualifying over and over again. You see his voters just kind of shrug it off or see people ignore it, or it just seems that we're all just attuned to this

and its background noise. I don't know. It just felt like seeing all of these things happen in a criminal courtroom was an interesting moment to me. I think seeing is the real issue, because we didn't see it for the most part, unless you were there.

And I think that that is a big difference. I think starting in the 90s, given all of the televised court cases and salacious things that we had seen then, whether it's the OJ trial or other things, people really sort of interpret and see video differently than sort of Trump being able himself to just say and spin what happened in the courtroom. The case in Georgia is still up in the air and it's the only one where there could have been cameras in the courtroom. And you know, maybe it's because this is a story that's eight years old and people feel like they're familiar with it. But you know, this is kind of a made

for TV trial that was not on TV. Some of the ways that Stormy Daniels undercut Trump or zinged Trump, you could just see playing on a loop if cameras had been there. Like this idea when his lawyer said, you're just making this up, like you do your movies, and she said, if I made it up, I would have written a better story. There were other examples like that. All of those kinds of things. Yeah, like when the defense attorney said, you're doing this just because you want to

brag that you had sex with Donald Trump, and she said, no, no one would want to do that. You can imagine that that would be played repeatedly over and over again, but the reality is that it's not, right? And this is where we are. And it's not even the most relevant piece to this case or was seen as the most important of the cases. We're not even sitting here talking about January 6th and whether or not Trump is held responsible for what happened that day. No, we are in fact talking about Stormy Daniels calling Trump a quote orange turd at what point on social media. Jed, looking ahead to next week, Michael Cohen seems to be the

last remaining key witness that the prosecution is going to call. What does the prosecution need from Michael Cohen to make its case? So this is where the prosecution has to be thinking about the problem of the appeals after this case. I think whether Donald Trump is convicted or not has much less to do with what Michael Cohen says next week and much more about how jury selection went. There's the line, if you can't do the time, don't do the crime. In this case, if you don't like the jury pool, Don't do the crime there fool. So, you know Michael Cohen

Right, so is that is that did you make that up or is that I did make that up It's not bad, right But it turns out that has a lot to do with trials. The problem is On appeal here and they need to make sure that they have checked the legal boxes for what the Trump lawyers will certainly appeal. Now that appeal won't get decided until after election, but one of my concerns here is that Trump gets convicted and then that conviction gets overturned on appeal and that would leave leave, I think, a lot of questions for American democracy about what happened here.

And so what they need to get out of Michael Cohen is more clarity beyond reasonable doubt for the jury, but establish an intent to violate the Federal Election Campaign Act and also the intent to defraud. And even if Michael Cohen has some problems in the past, campaign act and also the intent to defraud. Even if Michael Cohen has some problems in the past, the fact that he did plead guilty does not mean that Trump is any more guilty, but the fact that he did plead guilty and

spent time in jail for this gives him credibility that overcomes some of the problems of perjury, I think, for a jury. I got to say, you had some great legal analysis there, but that Cochran-esque line is what my brain was focusing on. Good. Domenico, I'm thinking about points that you both made a few minutes ago about how often Trump's legal strategies seem to be heavily influenced by Donald Trump's political requests and needs and the pressure he puts on his legal team.

Domenico, it feels like a cross-examination of Michael Cohen could be a key moment for that. Is this a way to win a case or is this way to score points against somebody who's been attacking Trump for years? Yeah. I mean, just yesterday you had the judge essentially telling the prosecution to tell Michael Cohen to stop talking, right? Like he's talking too much. And that's a potential problem for the prosecution. You know, Michael Cohen's another kind of wild card in this case. He was

convicted for lying to Congress, among other things. I mean, so this is somebody who the defense is certainly going to go after in that way. But, you know, if you have corroborating documents and corroborating witnesses, which is what the prosecution has tried to show that Trump signed off on these things, then it sort of doesn't matter as much whether, you know, Michael Cohen is this convicted liar. If the prosecution rested today, which is kind of an unfair question because they're not done making their case, but do you think at this point they have proved their case?

Do you feel like they've proved enough of the case that they need to at this point or do you have concerns on their end? The jury might have heard enough to convict, but they need Michael Cohen for the legal case on appeal. So that's the real thing. In fact, in some ways, all of this is factual background before Michael Cohen might or might not tie the case together on the legal question.

I have to say, my concerns after opening statement, I was more concerned than ever that the prosecution was playing fast and loose on legal questions. It is not illegal to enter into a non-disclosure agreement. Election influencing or election interference is not a thing when it comes to the law. Everyone has the right to influence an election. So the prosecutors were frustratingly vague about what the crime is. They have, I think, really sort of one last opportunity to establish this case on the law. And so that's the significance next week.

But as we think about the dual track of this, the political implications of this, walk us through legally what you think is most likely if Trump were to be convicted in this case. Well, first of all, if he's convicted, everyone has the right to an appeal. And there's no question that any sentence that's imposed here would not be served until the appeal. And the chance is almost zero that Trump would be sentenced to jail time. I mean, it's possible to some kind of, you know, house arrest or something like that. But for a first offense, there's no chance that even if he loses his appeals, he will

be going to jail in any form like that. Keep in mind, a president only has the power to pardon federal crimes, so Donald Trump cannot pardon himself in a state conviction. Nevertheless, if he were sentenced to jail time or house arrest, I am quite confident that a federal court would say that a state would be interfering with the federal constitution and the president's duty to take care that the laws be faithfully executed. That's part of the constitution that a state can't interfere with that by putting someone under house arrest. So that would be a new precedent, but it would be a rightly decided precedent if the voters put Trump back in the White House.

There's no White House arrest as far as I can tell under state or federal law. I think presidents would disagree with that actually. There's no White House arrest as far as I can tell under state or federal law. I think presidents would disagree with that actually. I think presidents- There's no White House arrest? Yeah, I think presidents often feel like that the White House is just like this gilded cage, but that's a different podcast. That's a different definition of it, yeah. But Domenico, Judge Marshawn did waive the possibility of at least the threat of possible jail time

if Trump keeps filing the gag order. Yeah. So the biggest chance of jail time here is if Trump talks too much. And there's always the possibility of that. But I think that people need to probably realize that with so many people on the left who are saying they want to see Trump behind bars, it's not going to happen. to probably realize that with so many people on the left who are saying, you know, they want to see Trump behind bars, it's not going to happen. All right, Domenico Montanaro.

Thanks so much as always. You got it. And Judge Shuckerman, thanks for joining us. Thanks for having me. And congrats to your son. I know you're on your way to his college graduation right now. Oh, thanks. It's nice to have something better to look forward to than some of the testimony of the last week.

We'll be back next week with another episode of Trump's Trials. Thanks to our supporters who hear the show sponsor free. If that is not you, still could be. You can sign up at plus.npr.org or subscribe on our show page and Apple Podcasts. This show is produced by Tyler Bartleman, edited by Adam Rainey, Krishnadev Kalamur, and Steve Drummond. Our executive producers are Beth Donovan and Sam Yenigan. Eric Maripotti is NPR's vice president of news programming. I'm Scott Detro. Thanks for listening to Trump's Trials from NPR sponsor Organic Valley, a co-op of small organic family farms like Stony Pond Farm, where Tyler Webb and his family consider the earth, the animals

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