Thread by @SethAbramson

(THREAD) This thread from a NYT-bestselling Trump biographer and former criminal defense lawyer offers the most comprehensive breakdown yet of the most explosive testimony about a POTUS ever: Stormy Daniels’ testimony. I’ll be working off court transcripts.

Please RETWEET.

1/ Please know in advance that this thread will be R-related and not appropriate for children. It will involve testimony about sexual intercourse with a former President of the United States as well as implications—in the testimony on same—that a sexual assault may have occurred.

2/ Further understand that while he objected to this testimony in court, demanded a mistrial over this testimony, was admonished for swearing audibly to intimidate the witness and jurors during this testimony and denies it in full, Trump *asked* for this witness.

I will explain.

3/ Trump didn’t merely ask for this witness by engaging in adulterous sexual intercourse with a porn star a few weeks after the birth of his son Barron with Melania and then lying about it for 18 years (as it’s now quite clear that he’s indeed been lying). businessinsider.com/trump-melania-…

4/ He *specifically* created the necessity for this witness by taking what he intermittently (but only when convenient to him) claimed, via his attorneys, was merely a paper case—a case in which documents comprise the whole of the evidence—and used it to enact revenge on Daniels.

5/ Trump’s lawyers have been—*because* of his highly implausible denial that he ever slept with Daniels—*forced* into a situation I can tell you from my own courtroom experience they would never have wanted to be in: having to over-promise attacks on state witnesses’ credibility.

6/ Specifically, Trump’s defense here isn’t merely a technical one (e.g., what I did wasn’t a crime, or I was following my lawyers’ advice, the latter a defense *he* decided against because his attorneys would have to reveal conversations with him in which he almost certainly...

7/ ...admitted to criminal and/or tortious conduct), but rather his defense is that there is a conspiracy of people out there—centered on Michael Cohen and Stormy Daniels—who are friendly with one another and in cahoots to destroy him because they are *crazy*. Literally deranged.

8/ This is more or less the common MAGA defense to criminal allegations now—as well as MAGA plaintiffs’ cause of action in many civil suits: allege left-wing conspiracies that don’t exist to distract from the horrific illicit conduct of people associated with the MAGA “movement.”

9/ So Trump’s false claim and fraudulent defense here—to avoid a more reasonable defense like advice-of-counsel that would expose more of his misconduct—is that Cohen and Daniels are criminals seeking to engage in Extortion as part of a Conspiracy.

This is a *big* lift in court.

10/ So Trump is having his lawyers suggest—ironically, at a time he’s facing 88 state and federal felonies in four U.S. jurisdictions—that the *real* criminals are former confidants and liaisons who now are committing a veritable *crime spree* just to screw with an innocent man.

11/ This requires Trump lawyers to argue that Trump never slept with Daniels and she made up the whole incident. Just so, he’s having his lawyers suggest Cohen made up all sorts of conversations with Trump to hide a criminal charitable scheme intended to aid Trump (yes, really).

12/ A *good* defense in a criminal case is simple, consistent with the facts, easy to explain, and most importantly *true*. By comparison, Trump’s defense—because he’s guilty but cannot *plead* guilty or else it would end his political career—is both byzantine and *wildly* false.

13/ It’s even worse than I’ve suggested. Why? Because Trump is *also* making his criminal defense lawyers say that *if* he’d slept with Daniels he would’ve covered it up to protect his family, not his political career—which is one hell of a shady dodge that the jury *won’t* like.

14/ Trump is a throw-everything-at-the-wall rhetorician, on the assumption his fans don’t care if he contradicts himself.

Juries *do* care. So saying you never slept with Daniels but *if you did* you then tried to protect your family is running two highly contradictory defenses.

15/ (As if you *did* sleep with a porn star in a one-night stand weeks after your new wife gave birth to your third son it’s clear you *didn’t* care much about your family, making that claim grotesque. But as he *did* make a payoff, he can’t *simply* say nothing at all happened.)

16/ (He can’t simply say nothing happened, as if Daniels were someone he’d never been alone with and didn’t know he not only would deny sleeping with her but never would have had any reason to pay her $130,000. In fact, Trump avoids paying mistresses to keep just that door open.)

17/ I’m getting into the weeds on defense strategy because it gave rise to another *huge* misstep: implying to jurors that not only did Cohen act on his own—which all the evidence says he didn’t—but Trump never *would* have paid Daniels as he never slept with her and therefore...

18/ ...nothing she could ever say (or ever have said in 2016, pre-election) could embarrass him.

You may see where I am going with this.

As this opened the door to prosecutors being able to put Daniels on the stand for *many* different entirely legitimate, non-prurient reasons.

19/ Specifically, the State had to put Daniels on to establish all the following in response to the opening arguments Trump made (outlining his defense in the case):

(A) That the sex occurred as Daniels has alleged. This means they need her to describe it in *enough detail*...

20/ ...for jurors to believe she’s not lying about it. That means she must provide as many confirmable details as possible—even intimate ones if they confirm this event happened and Trump was there. So her providing a detailed account of the sex is actually what Trump *demanded*.

21/
(B) Because Trump has telegraphed that he’ll savagely attack her *credibility*, the State must establish that her narrative has remained consistent over time, was told to others at the time, is consistent with the facts known about Trump’s schedule and proclivities and so on.

22/
(C) Because Trump has said there is nothing in her narrative that he ever would have been embarrassed about and wanted or needed to pay money over, the State even has some leeway to explain details of the sexual encounter that would embarrass Trump as a public figure in 2016.

23/
(D) Because Trump *also* falsely says Daniels is merely motivated by money, the State has a right to go through what happened to her at Trump’s hands in a very raw way—meaning, establishing how much it upset her, felt like a violation, and was a story she would want to tell.

24/
(E) Because Trump stupidly *also* made the false claim that Daniels orchestrated a conspiracy against him, he opened the door to questions about threats Daniels received, all the outreach to her by Cohen, the involvement of AMI.... everything showing *Trump* as orchestrator.

25/ This is why we need *criminal defense attorneys* commenting on this case—not just former prosecutors. Because this is *not* how a responsible criminal defense attorney puts on a defense. Ever. You’d *only* do this if your client is both a) crazy, and b) running for president.

26/ So Trump opened the door to the jury hearing *every piece of evidence he desperately wants to keep away from them* by running a throw-it-at-the-wall defense that accuses *everyone else* of committing crimes, launching a conspiracy, being deranged, changing their story, et al.

27/ Needless to say, it’s fine to run a defense like this if it’s true. Because then all the answers you elicit on cross will be helpful, the State won’t be able to cover its evidentiary vulnerabilities on direct, and so on.

But *this* defense is a gargantuan pile of horseshit.

28/ It’s in this context that we turn to the transcript of yesterday’s court session in NYC—which saw the beginning of Daniels’ testimony and is the most recent publicly released transcript we have. Trump’s lawyers objected to Daniels testifying at all, calling this a paper case.

29/ Again, it *could’ve* been a paper case with a *totally different defense* that Trump explicitly *chose* not to authorize because (i) he’s running for president and treating this case as a PR stunt, (ii) he’s mentally unwell and wants vengeance against his enemies (which...

30/ ...one simply can’t get in a case where *you’re* the defendant, but Trump seems not to grasp the basic mechanics, realities, or power dynamics of his situation), (iii) he’s accustomed to having his lies quickly credited and (iv) he can’t plead guilty due to his circumstances.

31/ So no—this isn’t a paper case. Or a documents case. (There are many similar terms.) It’s a Conspiracy case, an election-interference case, and a case about prurient people—and as much as Trump would like all three of those terms applied to Biden, Cohen and Daniels...it’s him.

32/ The next failed attempt by Trump’s attorneys is to say, well, Daniels can’t testify to anything *embarrassing*, then.

And that’s just a lawyer begging a judge—and prosecutors—not to hoist the defendant by his own petard.

*Trump* ensured this testimony would be embarrassing.

33/ He ensured it with his adultery; his elective criminal defense at trial; his defamation of Daniels and Cohen; the self-serving framing he has given this trial from the start in the public eye; with the people he’s chosen to surround himself with. It’s all him—*not* the State.

34/ What the judge, prosecutors, and Trump’s lawyers *did* agree on is that there was no necessity for explicit, *purely* prurient details that had *nothing* to do with confirming Daniels’ narrative or confirming why she was upset by the incident—and are merely nakedly salacious.

35/ That ruling by the court was correct—as you cannot unduly inflame the jurors by giving them prejudicial information that is *not relevant or probative*. By way of example, some jurors may not like a certain defendant’s sexual proclivities, but that should never decide a case.

36/ Still, Trump had opened the door to *such* a wide-ranging set of bases for the State questioning Daniels that it was clear, even before her testimony started, that it would be hard for *nothing* to come in that the defense could object to (and have its objections sustained).

37/ The reason is that this is very emotional territory; and Daniels isn’t a professional witness (e.g., like a cop or expert witness); and there’s known bad blood between her and the defendant; and Trump’s lawyers have made it their mission to attack and incite state witnesses.

38/ So I rather think that former federal prosecutors on cable news have overstated the chance of a mistrial here. Yes, there was a motion for one; yes, the denial of the motion will be raised on appeal; yes, objections were made and sustained about things Daniels testified to...

39/ ...before the judge could shut her down (e.g., because she was in mid-sentence).

But for a mistrial motion to succeed, the defense would need to show that a bell had been rung that could not be unrung by *any* jury instruction from the judge to the jury, and moreover that...

40/ ...the information that came in not only *cannot* be remedied with *any* jury instruction—and judges routinely tell juries to ignore certain evidence they may have technically heard—but is *so prejudicial* that the jury can no longer deliberate on the case in a just way.

41/ That’s a *high bar*—and while MAGA non-lawyer trolls will surely claim otherwise, it is *not* met simply because some evidence came in before it could be objected to successfully, or because (as Judge Merchan noted) in some cases Trump lawyers *should’ve* objected but didn’t.

42/ So please don’t assume that just because Daniels said something humiliating about Trump that the defense then objected to—with the judge agreeing and telling the jury to ignore it—it creates a mistrial. No, not at all. Especially because this embarrassing stuff is everywhere.

43/ In other words, it’s harder for Trump to claim a bell has been rung that cannot by any means be unrung *and* that prejudices him out of a fair trial when so much embarrassing stuff is already in evidence and unquestionably so. By comparison, if this were a Trespassing case...

44/ ...and suddenly a witness for the State blurted out, “And the defendant is *also* a member of the KKK who is planning terror attacks against innocent women, children, and Jews—I heard him say it!” you have a *huge* problem because that information in no way arose organically.

45/ Thus:

46/ I’d note too that Trump’s defense *also* opened the door—I guess this would be item (F)?—to the details of their conversation on the night in question and after, as these establish aspects of Trump’s M.O. and motive that go beyond just establishing her memory and credibility.

47/ One more note before we properly begin: Daniels was the second witness yesterday—so she was the “second witness” Trump was complaining about on social media yesterday in a way that may have violated his gag order (actually twice—once in a press release and another in a post).

48/ Judge Merchan made clear to Trump—*before* these posts/releases—that another gag order violation could lead to him being jailed (and he was *very* clear that he *didn’t* want to do that, practically begging Trump to acknowledge the court’s authority). Trump cursing audibly...

49/ ...during Daniels’ testimony was therefore an act of Direct Contempt that *probably* should’ve already landed him in jail (and is a sign of severe mental illness; I’ve almost never had *any* client behave as badly as Trump—and to do so while facing jail is a sign of illness).

50/ Okay, so here is the debate that ensued up at the bench (outside the hearing of the jury) before Daniels took the stand:

51/ It continued thus (and I hope my long preamble in this thread now causes this discussion between Merchan and the State and Trump’s lawyers to make *much* more sense to non-lawyers out there):

52/ As a former criminal defense attorney who tried cases up to First-Degree Murder to acquittal, I’d call this terrible lawyering by Nescheles. *She* opened the door to questions establishing credibility, but now says the credibility issue means you cannot ask those questions.

53/ You can’t say “She changed her story”—of a witness you know can testify—then repeat “She changed her story” in a vain attempt to keep the witness off the stand. Once you establish she has a credibility issue you open the door to questions on it—*not* exclusion of the witness.

54/ What Attorney Nescheles is doing here is at once throwing a bit of a tantrum and proving her intemperance by arguing a tautology, a fallacy you almost never see in court as seasoned lawyers neither use tautologies nor expect anyone else to find them rhetorically convincing.

55/ What Nescheles may be trying to do is preclear herself to ask mistrial-advancing questions by saying to the judge, we take no responsibility for the line of questioning you’re forcing us to engage in, and on appeal we’ll take no responsibility for what we say—for that reason.

56/ More of the sidebar:

57/ It’s important to understand that it was Team Trump—not the State—that raised Rape first. And they did it for the most cynical, disgusting reason I can think of: they are *falsely* accusing Daniels of claiming Rape so that they can use their *own false claim* for a mistrial.

58/ So the State is being responsible, letting everyone know in advance what Daniels will say. Then Nescheles starts *making things up* that *no one ever said* Daniels would say to create a record for appeal in which *Nescheles* says Daniels’ testimony raised the Rape question.

59/ For her part, Daniels has always been clear: it was an upsetting sexual encounter but it was not Rape. She was not coerced into sex; Trump was not blocking her exiting the room in a threatening way (though he did stand in front of the door). So one of two things is happening:

60/ Either (a) Nescheles is doing as I said and creating a record littered with the word Rape so it will scare an appellate court into ruling a mistrial, *or* (b) the conversations Trump had with his lawyers that he doesn’t want anyone to know about involved framing this as Rape.

61/ And what I mean by the latter comment is that *Trump* may have acknowledged to his attorneys that the encounter could be perceived as Rape-adjacent, and the attorneys he hired are therefore *understandably* (rather than cynically) concerned that Daniels will describe a Rape.

62/ But we must underscore that that shading is coming from Team Trump—whose reason for, in the future, arguing for a mistrial is an idea that *it* seeded into this case—*not* Stormy Daniels. Her story has been consistent (except when Team Trump got her to sign a false document).

63/ This is one of the odder forms of *revictimizing a victim* I have ever seen—arguing that a defendant did *worse* than what he actually did as a means of *discrediting* a victim who says what he did was *not* as bad as what the defendant is now trying to trick her into saying!

64/ As the sidebar continues, we continue seeing Judge Merchan rightly saying that the *defense* opened the door to all these questions, and that as long as the State abides by its proffer—e.g. that Daniels will say she was threatened but not associate it with Trump—they’re fine.

65/ Here we see Judge Merchan siding with Trump to limit what Daniels can be asked about. But the opening-the-door rule still applies—if Trump pushes his lawyers too hard to discredit Daniels, he could create a situation in which the State can ask her things they couldn’t before.

66/ Thus:

67/ I’ll mostly skip over Daniels’ life history, other than to note that she delivered it in a bit of a rush early on—betraying some nervousness, which is understandable—and to add that she’s had a much more interesting and varied life than the “porn star” moniker ever hinted at.

68/ Daniels began writing and directing films at 23 and is very much a self-made, self-supported person.

You can sense her anger at how Trump treated her and the fact that she is in court for *this* reason—this situation. Even on direct, I sense a slight hint of her frustration.

69/ I... did not know any of this. Wow.

70/ I also did not know that, beyond being from Louisiana, Stormy Daniels is a *Republican* who considered—and briefly took on—a political run.

(And apparently she is still a Republican.)

71/ As I said, R-rated.

72/ Daniels met Trump in 2006, when she was 27 and working at a celebrity golf tournament Trump was playing in. The famous picture of them was taken when Trump was playing through the particular golf-course hole that Daniels was then working at as a professional micro-influencer.

73/ The exchange was awkward from the start. When Trump heard she directed films as well as starring in them he made a comment about her intelligence that implicitly put down someone she was with. At their second meeting he asked for a DVD of her having sex. He was her dad’s age.

74/ She doesn’t appear to have known so much about him that she was starstruck (that would be the McDougal affair; *she* admits to having been starstruck). But she knew enough to know he was a celebrity who did cameos in movies—as had/would she—and who had a big television show.

75/ I want to be fair—the DVD he got was one she directed *and* starred in, but it seems clear that he knew she starred in it also, for as much as he appears to have focused on the fact that she directed it (presumably to be just 5% less creepy than he would have already seemed).

76/ That creepiness was proven by the fact that Trump immediately thereafter walked away and directed his security team to arrange for Daniels to come to his room.

I can tell you from being a Trump biographer that this is his creepy MO: he selects a woman, she’s then delivered.

77/ Quite often a pretense is arranged, like dinner. That would’ve been necessary here (similar to the infamous Kata Sarka episode, but different from the digital-brothel Russian prostitutes sent to his Ritz Moscow suite in 2013) as he’d vaguely noted that she was a professional.

78/ It’s important to understand this about Trump: women are delivered to him like packaged goods, and his pimp (the man who arranges sex for him) was for years his shady bodyguard Keith Schiller, who was paid *so much money* by the RNC to stay quiet after he left Trump’s employ.

79/ Trump isn’t a man who even has the courage to ask a woman out himself. There are many reasons: he doesn’t accept rejection (see his rape of Ms. Carroll); he’s a coward; he wants to minimize public evidence of—and his involvement in—arranging adultery. washingtonpost.com/politics/2023/…

80/ So a man who’ll do anything for Trump and is paid handsomely to do so—paid not to ever do anything that would harm him in any way—handles transporting the women Trump selects. Yes, women in America *do* need to understand—and many do—that they are not fully human to this man.

81/ Daniels said *no* to Schiller.

Later then she changed her mind, convinced by a co-worker that dining with Trump—who’d given no indication it was anything else, indeed *specifically* focused on being interested in her art (writing/directing), not sex—could be good networking.

82/ The key thing to understand is that Daniels was—quite seriously—in the TV/film industry, and Trump *was* a potentially amazing contact for her. And with her being 27 and Trump being over 60, one can *easily* understand she thought she was pursuing a legit career opportunity.

83/ We must *also* understand that Trump worked hard to create that misimpression. He didn’t ask about her acting in TV/film, only her directing, and got one of her DVDs allegedly on the basis of her directing chops. He then asked for *dinner*, suggesting an interest in her work.

84/ I suspect it’s always tempting when someone successful in your field and more than twice your age seems to take an interest in what you do and—alone and at loose ends in Utah when they’re from NYC—asks if you’d be willing to dine with them as just an interesting dinner guest.

85/ But when Schiller sent her directions on how to get to Trump, I’m sure that—in retrospect—Daniels now realizes that Trump had situated himself in a *lair* (and yes, that’s the right word for it) that’d specifically been set up so that no one would see who was coming or going.

86/ This is *another* M.O. I encountered as a NYT-bestselling Trump biographer. He uses lairs; in public, he tries to find ways to trap his prey (as happened, tragically, with Ms. Carroll). He’s a malignant-narcissist sociopath and serial sexual assailant; his methods reflect it.

87/ But let’s be clear: Daniels testified to none of this. She just related what happened to her.

So as icky as an adulterous liaison might seem to some jurors, the core facts of it are central to this case and Daniels does a good job bringing them in in a sober, responsible way.

88/ Daniels describes how Schiller even *pre-opened the door* to the Trump Lair, again limiting anything that he (Schiller) might see regarding an adulterous Trump liaison. Trump was nowhere to be found.

The prey of the spider must come to the spider; that is how Trump operates.

89/ What Keith Schiller, who I personally deem to be a pimp-equivalent thug from having researched his activities, *did* do was convince Daniels that she was only going in to the Trump Lair in preparation for going back downstairs to a public place for dinner. See how that works?

90/ But Trump obviously does not want to be seen in public with his prey. So he creates conditions that make it unlikely—like being in f*cking silk pajamas when someone arrives in your hotel suite who your pimp-cum-bodyguard said you were going *out* to dinner with arrives. Thus:

91/ The pajamas were a gambit; if she took the bait and was willing to go right to sex, great, he wouldn’t have to speak to her as a human being. If she balked—as she very much did—it was merely a minor setback. So Trump changed clothes quickly but didn’t lead them from the Lair.

92/ Daniels describes the Lair as enormous—three times the size of her apartment. It was the penthouse suite at the hotel, apparently, which is important for Trump because anything but that suite is not only not the best room available but also lets others know what you’re doing.

93/ The second move the Spider made in his Lair was to bring Daniels into the dining room—a prelude to saying that they could stay upstairs and eat rather than go downstairs (which one has to imagine he had no intention of doing whatsoever, as everyone would see who he was with).

94/ Daniels has incredible recall of their conversation. And we can see how Trump sprinkles questions he actually cares about amongst ones he does not. Do you have a boyfriend? Do you get tested for STDs? Tell me more about you acting in adult films?

You see where he is going.

95/ But it is also worth noting that (a) Trump is good enough at what he does that he asked her many questions that flattered her, and (b) she is *fair* and *honest* enough in her testimony to admit this and speak at length about his *interesting and legitimate* questions of her.

96/ So Trump asked a lot of questions about her past STD tests, and about the rules for having sex on camera.... he clearly wanted to have a conversation with her that (a) they were *not* going to have at a public dinner table, (b) *could* naturally segue into a sexual encounter.

97/ When Daniels asked about Melania—which I suppose was an acknowledgment that she *knew* the situation was potentially inappropriate already—Donald Trump said, tellingly (emphasis added), “Don’t worry about *that*.” Melania and his marriage was a THAT and very much *not* a WHO.

98/ Trump has a clear idea on how he wants to seduce—such as it is—a woman: he makes her feel small. Daniels was accomplished for her age, but he kept interrupting her, talking about himself, and as she would say to the jury, apparently trying to “one-up” her.

Which is... crazy.

99/ Wow?

100/ Wow?

101/ I suspect jurors would take from this that there were *two* reasonably canny operators in that room. Daniels established a willingness to cross boundaries of propriety Trump surely found arousing, while him being more polite allowed her to have the talk about TV she wanted.

102/ Trump is—not surprisingly—the one who turned the conversation that night to an offer to put Daniels on his show. I’d deem this Gambit #3, which is to use his pretend interest in her career to make her an offer to advance it that would move him a step closer to the bedroom.

103/ Trump, starting to get desperate for sex after being spanked by a porn star, starts pulling out every stop—like a dog running through all possible ways of getting a treat without understanding the training at all. He gives her his highest compliment: comparing her to Ivanka.

104/ He even says he will *rig his TV competition show for her*—which, by the way, is not only a federal crime but something I *established* he did in the NYT bestseller Proof of Collusion during an early-2000s pageant. Rigging contests to get sex is another longtime M.O. of his.

105/ So surely now you’re wondering—as we look at how the Spider operates in his Lair—did he not at least *try* to push his luck and negotiate a threesome? And the answer is...

...come on, you *know* the answer is yes. Here are some of the questions he asked her once horny:

106/ He is as gross as you think and more. It cannot just be adultery weeks after his son Barron was born, it has to be a threesome.

107/ FFS.

108/ After two hours of talking, some of it spent fruitlessly waiting for the friend to show up for what Trump clearly intended as a threesome, Daniels goes to the bathroom and Trump—having lost patience—goes to the bedroom and disrobes. He deems himself to have earned his treat.

109/ How do you think this story would’ve played on October 15, 2016—days after the Access Hollywood tape? How do you think *Trump* would have thought it would play?

Correct: Trump believed this story getting out would’ve been the end of his political career.

And it would have.

110/ And *that’s* when *this* happened at the trial (right after Daniels testified that she went to the bathroom in Trump’s suite, the court called a recess, and Trump knew what Daniels would testify to next but *also* how the testimony so far—which he asked for!—made him look):

111/ The Spider getting revealed in public—an amazing moment. One Trump clearly wasn’t mentally or emotionally equipped to handle.

On some level he must’ve understood what a sadly, lonely, creepy, carnivorous creature he would’ve seemed to jurors...in testimony *he made happen*.

112/ So we return to a legal issue—is there any grounds for a mistrial? No. What Merchan says to defense counsel after the break makes that clear. Merchan feels the testimony is taking too long and is too detailed, but it is *not* wildly embarrassing or prejudicial *on its face*.

113/ So let me explain what I mean. Is Daniels just telling what happened to her embarrassing to Trump from a *political* standpoint? Sure. Would it prejudice a jury? No. Is it relevant to understanding a story Trump didn’t want out and was willing to commit crimes to hide? Yes.

114/ This is where MAGAs and Trump get silly. They say that *anything* that embarrasses Trump *at all* and *in any way* means mistrial. That is, candidly... hilarious. This is a criminal trial! It is going to be embarrassing! The facts will not be good!

That’s not the analysis.

115/ The analysis is if irrelevant material came in; which defense counsel objected to but was overruled on; which material was both irrelevant and *so prejudicial* that it’d make a fair verdict impossible. Merchan was more worried about *boring* the jury than anything like that.

116/ So while you and I can bring in everything we know about Trump—e.g. that he’s a rapist—and see in this story stuff that is incredibly creepy and awful, that’s simply *not how the jury is situated*. We make our analysis of prejudice based *only* on what’s *put before jurors*.

117/ Trump cursing audibly during testimony to a degree that could intimidate the witness or jurors after he’s violated his gag order ten times already and is promising to be a *future dictator in America*—*that’s* a *far* bigger concern for Judge Merchan here as to a fair trial.

118/ So Trump doesn’t just *not* have a mistrial claim here, but if anything the fear of a mistrial is *Trump* deliberately causing one to delay his case until after the election. And candidly I will say that I worry about that both with regard to Trump *and* his legal counsel.

119/ It’s *very* easy for a lawyer to cause a mistrial—and I suspect that before this case is over, Trump will have ordered his lawyers to do just that. And I just don’t have enough faith in the ethics of these attorneys to feel certain that they would rebuff him if that happens.

120/ In a suite that big, I imagine there are multiple bathrooms?

Trump directed her to the one off the master bedroom.

*cough*

121/ Should prosecutors have asked this? No.

Should defense counsel have objected? Yes.

Was Judge Merchan shocked that they didn’t? Surely.

Are we in mistrial territory with stupid details like this? Absolutely not—not even in that universe. This is just silly extraneous pap.

122/ I think prosecutors would argue they wanted to establish that Daniels was in the bathroom a long time and called her friend while there. I think they would say they wanted to establish she had access to personal Trump spaces and that would’ve embarrassed him about the event.

123/ But tell me, what juror would care about Trump having gold tweezers—let alone in a prejudicial way that spoils the entire trial—when everyone agrees that *this* testimony, which came next, was not only relevant but essentially what the defense Trump chose caused to come out?

124/ If we credit Stormy Daniels testimony, and as we are only in direct examination thus far there is no evident reason not to (nor would we expect there to be), Trump moving to the bedroom while she was in the bathroom, and removing his clothes while between her and the exit...

125/ ...was way beyond creepy. It was aggressive. And given that she’s alone; he’s much larger than her; he has a loyal man guarding the door; she’s in no way agreed to *any* intimacy with him...this is a *terrifying* situation that Daniels can’t be told she should have expected.

126/ Normal people understand this; some readers sadly won’t. Stormy Daniels has *every right in the world*—because this is America not MBS’s harem—to go to dinner alone with a man in his suite as a networking event. (Not that Trump had any intention on dinner, nor did they eat.)

127/ Taking a quick ten-minute break. Will return shortly.

128/ This is hard to read. Daniels is a savvy, driven woman who was quite understandably trying to advance her career via networking and (at the very most) some harmless flirtation. Yes, in retrospect we see many red flags. But she did not expect, nor could have expected, *this*:

129/ JFC!

130/ Let’s review how we got here:

(1) He lured her with a dinner invite; there was no dinner—not even a whisper of it.
(2) Schiller lied and said they would be dining downstairs.
(3) Trump arranged everything so no one would see what he was doing that night, not even Schiller.

131/

(4) Trump tried the silk-pajamas gambit to go right to sex.
(5) He directed her to the dining room to maintain the illusion of a dinner invite.
(6) He directed her to the bathroom off the master bedroom rather than a different bathroom.
(7) While she was inside, he pounced.

132/

(8) Unbeknownst to her, he was entering the bedroom—between her and the exit—and undressing.
(9) He had failed in trying to get her to set up a threesome.
(10) She never said anything to him indicating she wanted sex. Rather, she focused almost entirely on her career goals.

133/

(11) When she emerged from the bathroom to leave after 2 hours in-suite—because there’d been no dinner as promised, and her friend wasn’t coming, and the conversation had run its course—he wasn’t only undressed but stood up and blocked her exit from the suite with his body.

134/

(12) He didn’t threaten her or put hands on her—but did keep a conversation going she made clear she didn’t want to have by standing between her and the exit.
(13) That conversation was *insanely disrespectful*—promising to get her out of a trailer park she’d never been in.

135/

(14) As this is happening, she’s scared. Not just emotionally but physically. She’s feeling ill, dizzy, disoriented. She knows this room is remote, guarded by a Trump foot-soldier, and that Trump is much older, taller, stronger, and heavier than she is. She sees she’s prey.

136/ The Spider, deep in his Lair, has closed his trap.

137/ “I thought we were getting somewhere,” the Spider said. “We were talking. I thought you were serious about what you wanted.”

Keep in mind that—as he’s saying this—Trump has been a rapist a long time. His first known rape had come decades earlier.

*We* know; Daniels didn’t.

138/ And this is when the Trump lawyers go f*cking insane.

139/ Daniels says that because of everything that was happening, she sort of blacked out. She states, WITHOUT ANY EQUIVOCATION, that she was not drugged, she was not drunk, she was not assaulted pre-sex. She is clearly talking about a panic attack.

But Trump wants that mistrial.

140/ So Trump’s lawyers go to the bench and *lie* to Judge Merchan about what Daniels has just said, again trying to create a *fraudulent appellate record* by simply making up things that never happened so they can later *quote their own words* in their appeal. Read for yourself:

141/

142/

143/ This is a witness being honest and direct when she has every opportunity to lie.

144/ (Just a reminder to anyone who hasn’t yet done so: please, if you would, RETWEET the first post in this thread—my pinned tweet—so people know about this live reading. Media is bizarrely avoiding covering this story tonight, so this may be folks’ best shot to learn about it.)

145/ Not sure what to make of this.

146/ I mean so much of this is confusing. The sex was going to come in—and the fact that she regretted it was going to come in to explain that she was motivated to tell her story because the experience was a bad one—so what exactly does objecting to “missionary position” get you?

147/ If I were advising the defense, I would say: Look, just get through this testimony as quickly as you can. The more you object, the more you make it look like *you* think it was Rape and that these details are awful and harrowing rather than just a regretted sexual encounter.

148/ At most, you ask the judge for a sidebar at which you discuss how long this line of questioning will go on. But not because it is extremely prejudicial—bad, not-looked-for sex that is legally consensual (*on these facts*) is embarrassing, but not prejudicial—but *pointless*.

149/ At most what the jurors are thinking is, Okay, I probably didn’t need to know that.

*Not*, I’m so angry at this defendant I can no longer think straight or do my job and no combination of instructions from the judge will put me back into a place of coherent rational thoug—

150/ Again, legally speaking, based on her testimony, there is no way for defense counsel to say that she testified to a Rape. She did not. She testified to bad, unlooked-for consensual adult sex that she later regretted and felt ill during. Terrible, but not close to a mistrial.

151/ If anything—and my skin crawls writing this—the stuff defense objected *most* to simply makes him look pathetic, not like a rapist.

The fact that he asked to see her again, repeated his offer to help her, tried to kiss her after, it all is—maybe undeservedly—humanizing him.

152/ She even says that one reason she did not tell people the story she just told the jury is that she believed people would deem it a sad and almost funny story rather than anything upsetting or that she felt bad about. So she is acknowledging the story could come off that way.

153/ More bad lawyering from Trump’s team. Sometimes you *let* opposing counsel lead a witness if you know they’re doing so to abide by a court order about what the witness can or can’t testify to. These Trump attorneys are acting like new lawyers—objecting just because they can.

154/ And no surprise, the prosecutor then immediately makes that point:

155/ Necheles is really struggling here. Daniels *hadn’t* testified to Trump using undue influence, so what is she talking about? It’s almost like she’s writing her appellate brief in mid-trial, so much so that she’s not actually listening to the anodyne answers of the witness.

156/ The next day she saw Trump again, again arranged by Schiller, but it was in public at a booth in a nightclub/bar. A famous QB was also in the booth.

Trump again said he would help her, then left, asking the QB to walk her to her room. Weird stuff, yes, but fairly innocuous.

157/ Trump stayed in touch with her. Called her a lot. Had a pet name for her. Said he missed her. Kept bringing up getting her on his TV show. Met with her in person a couple times. Tried to convince her to sleep with him again. Sad stuff; nothing at all prejudicial, in context.

158/ It did seem that one of those times he tried to set up a threesome... again. My read is that he was thrilled to be in some sort of fling with a porn star and saw it opening up some exciting possibilities for him. As time when on he was less and less cautious about hiding it.

159/ At this point in the direct examination I think the Trump Plan gets revealed. Essentially, she doesn’t want to sleep with him again. So she keeps saying she wanted to meet him in public because that was safer. Team Trump *deliberately* mis-takes this as implying a past Rape.

160/ This is sick. *Clearly* she only means that being alone with him had led to a sexual encounter she regretted, but he did not think it had been a bad experience for her (though it had been), so he kept wanting to repeat it. But as she *didn’t*, she stuck to public meetings.

161/ What’s sick is *Trump*—Trump, not the State!—deliberately trying to reframe what happened as Rape so he can argue on appeal that letting Daniels testify at *all* (at least as to anything sexual) was mistrial-worthy, though again it was a defense *he chose* that caused this!

162/ I’ve never seen a defense like this. Again, I think it’s only happening because Trump is crazy—and not like a fox—and running for President of the United States. Otherwise, it’s such a bizarre 7-10-split move, you’d *never* expect an appellate court to buy it. Then again...

163/ ...is the idea that Trump thinks this will go to SCOTUS, where the hardline conservatives will find this sex talk so icky that—because few of them have actual trial experience—they’ll just *assume* it was mistrial-worthy? So maybe Trump is amping up the R-rating on purpose?

164/ The R-rating of the *transcript* is being amped up by the *sidebars*. As to what the *jury* hears, so far the defense isn’t amping up the prurience of it, but so routinely asking for answers to be *stricken*—which is a rare ask—that it *emphasizes* those answers to the jury.

165/ You usually object but don’t ask to strike because the risk is emphasizing answers and implying they’re very damaging. You make the ask only if you *have* to—and Trump’s team is asking for it when they don’t have to. They want a transcript that *emphasizes* prurient moments.

166/ So this is interesting. He *did* again invite her to a private room—his bungaloo at the Beverly Hills Hotel—to, he said, talk about getting her on TV. And she went—though she had her boyfriend waiting in the car—because she really thought Trump might deliver. Enter Schiller:

167/ Of course it was another ruse by the Spider. He got her to his Lair but actually had no update for her. He just made sexual advances on her—which she pushed off (perhaps by now knowing him to be a germaphobe) by saying she was on her period, which he clearly couldn’t handle.

168/ The prosecution keeps wisely underscoring that after the initial incident Trump *didn’t* try to hide his association with her. Why? Because it emphasizes that Trump *wasn’t* worried about hurting his family with his adultery.

He *only* began to care after entering politics.

169/ That’s also why the State was *justified* in asking her what she discussed with him the first night. That let her testify that Trump said not to worry about “that” with respect to Melania.

Trump *invited* that testimony by sorta-kinda claiming he was protecting his family.

170/ Crikey, Trump’s team even objected to Daniels saying—in response to a non-objected-to question about how her life went in the years after she stopped taking Trump’s calls—that she became a nationally ranked equestrian. Why object to that? Who cares?

They lost the objection.

171/ This is what happens when as a defense attorney you’re performing for your client rather than doing your job. You flail about trying to imagine what objections would please your client or {waves hands about} John Roberts on appeal (!) rather than just *doing your damn job*.

172/ This next part is too confusing to explain easily.

Upshot: in 2011 she agrees to do a brief gossipy interview about Trump with In Touch for $15K. It never runs. She says she did it because the story was being published anyway and she wanted to control the narrative/be paid.

173/ The confusing part is that while she was working with In Touch, a man threatened her and her daughter if she didn’t shut up. When she revealed this in 2018, Trump said she was lying. She sued him for defamation, she lost (the court said it was Trump being hyperbolic). So...

174/ ...now she owes him legal fees. Stupidly, the defense team brought up in opening that she owes Trump legal fees—which *opened the door* to the State asking her about the threat. Remember when I said Trump stupidly made her credibility an issue—and it’s biting him in the ass?

175/ This is how.

He clearly *insisted* his lawyers bring up him beating her in court—even though it opened the door to a threat she received that *she’s never ever said was sent by Trump*, but which jurors might *presume* was sent by Trump (even as she admits she has no idea).

176/ Soon after she meets Keith Davidson because he’s a friend of her agent who helped her get a story about her and Trump on a gossip site—one she had nothing to do with—taken down. She got it taken down because she was scared about the earlier threat—so it’s relevant there too.

177/ So the threat being testified to isn’t a basis for a mistrial. First, as she never tied it to Trump; second, as Trump opened the door to it in opening; third, as it explains how she met another key witness in the case; fourth, as it answers larger attacks on her credibility.

178/ Trump has stupidly made central to his defense the idea that Daniels’ story changed over time, which she explains by noting reasons her recollection expanded—during the initial sex, she’d blacked out—and by explaining that there were times she held back details out of fear.

179/ Again, if Trump admitted to the affair the case could’ve been about wanting to protect his family, or about whether these criminal statutes can be applied this way, or about whether he took lawyers’ advice. But he learned from Roy Kohn, “Deny, deny, deny.”

It’s killing him.

180/ Now we hit 2015. Trump has announced his candidacy. Daniels decides it’s safer—and more lucrative—to sell her story so it’s just *out there* (less reason, then, to threaten her). But pre-Access Hollywood, no one was biting. After, a different story. Most of the objections...

181/ ...at this point are hearsay objections—re: the advice Daniels was getting—and they’re sustained. Interestingly, Daniels didn’t go to Cohen or Trump to have them buy the story—a critical point, as Trump is arguing her plan was always to extort him. In fact she went to media.

182/ Media—which really *wasn’t* trying to harm Trump in 2016, for all that he’s claimed otherwise—wasn’t willing to tell America that Trump was a notorious philanderer, so they wouldn’t deal with Daniels.

*Only* when the story was unavoidable due to the AH tape did that change.

183/ It’s amazing how much that 2011 threat screwed Trump here in 2024, as Daniels gets to mention it every single time she’s explaining why she went about selling her story the way she did.

Am I pretty sure I know who was behind the threat? Yes. But I’m not addressing it here.

184/ The important thing is that Trump crafted *precisely* the defense that allows this bad stuff to come in, which normally wouldn’t be an issue—the defense presents second—but he had his team promise things in *opening* that the State then immediately got to say “opened doors.”

185/ Daniels says—apparently accurately—that she never negotiated the $130K amount, it was simply presented to her and she was fine with it. At the time, she testifies, again apparently accurately, she was doing well financially and did not *need* a financial windfall to come in.

186/ All this is coming in—even information about the money she made with her horses!—because *Trump* decided to accuse her of extorting him despite him knowing that that isn’t what happened, and even *Pecker* saying that catch-and-kill was normal course of business, not illegal.

187/ To be clear, what Daniels did is arguably seedy. But I think a key point the State will emphasize in closing is (a) she went to media *first*, and they ignored her; (b) she thought by agreeing to a deal with Trump, any threat to her would end. Which does make a lot of sense.

188/ In other words, Trump or anyone associated with him/trying to aid him would have no reason to threaten someone he’d paid and gotten an NDA from (especially with a signed letter denying the affair). It *did* make her safer. Definitionally. So that 2011 threat *is* relevant.

189/ Thus this testimony about (we now know) the secret plan Trump and Cohen had to stiff Daniels the money they owed her despite signing a contract (by the way, if you or I did this it’d be charged as Class A Felony Theft By Deception, but Trump was let off the hook for that):

190/ Keep in mind, the reason I report Trump as a career criminal is because he’s spent his life signing contracts he never intended on honoring—which is a crime. I’ve represented *many* poor folks charged with that crime. Trump got away with it for decades on a far larger scale.

191/ So the plan with Daniels was his usual M.O.—sign a contract, never perform on it. A crime. So he plotted and committed a felony to win the election that *wasn’t* charged by Bragg. Trump’s DOJ deliberately futzing around with the case caused its statute of limitations to run.

192/ So the contract was a crime given that Trump signed it intending not to honor it; he was *stealing* $130,000 from Daniels under U.S. law. But when Cohen ultimately paid the money, Trump worried about the consequences of stealing from *Cohen* so he falsified business records.

193/ If Trump could have stiffed Cohen, of course he would have. But—to put it delicately—he knew better than anyone (a) what Cohen was capable of, and (b) what Cohen knew about *him*. (Remember, Cohen was lead on Trump’s secret Kremlin negotiations.) So he *had* to pay him back.

194/ Which is actually *another* felony Trump committed pre-election: he knew Cohen was paying Daniels, not him; and he had no intention of paying Cohen; and knew Cohen was paying Daniels to aid his campaign; so *that* was a campaign finance crime... by Trump.

Also not charged.

195/ Lucky Trump! He used his DOJ to corruptly delay this case as a federal investigation (just as he’s using his judge—Cannon—to do that now in Florida); watched Cohen go to prison, largely for what he (Trump) did; now whines about getting charged with a *subset* of what he did.

196/ And in choosing a defense, he chose to accuse two people *he’d* planned to commit crimes *against*—Cohen and Daniels—of committing crimes against *him*, a classic instance of mental illness that is attributable only to *him*, not Alvin Bragg or anyone else he wants to blame.

197/ At this point in the transcript the case turns toward what happened once Daniels realized she was being stiffed and Cohen was trying to run out the clock until Election Day (which fact *in itself* confirms what Trump denies: that this was about the election, not his family).

198/ Though we have only covered a portion of the direction examination of Daniels and none of the cross, my hope is that you have seen from this thread exactly what strategy Trump was pursuing and why (and how), and why his claim of a mistrial is actually gross and preposterous.

199/ I do not know why media has not covered *this* part of the trial properly—though I can guess. America is still a somewhat Puritan country, and just as media was scared of the Steele dossier and would not work with Daniels pre-election in 2016, all this stuff makes it queasy.

200/ I’m going to stop here—as it’s after midnight where I am and I’ve been at this for hours. It’s also at this point that the court broke for lunch! There’s no obligation to tip for this thread, of course, but if you wish to you can drop a donation here: sethabramson.net/pp

(UPDATE) I just finished reading CNN's summary of Daniels' testimony from this morning, and it's exactly as expected—Necheles is being unprofessionally combative in confronting a witness she knows is telling the truth, claiming contradiction where the jury is unlikely to see any.

(UPDATE2) The proper form of a cross-examination question is actually a *statement* made *at* the witness that compels them to respond only YES or NO. The statement will be a fact you know is true that they cannot deny/must admit. That's not the question format Necheles is using.

(UPDATE3) Because Necheles knows Daniels is telling the truth, she's using a different—ineffective, unprofessional—technique: try to get the witness angry by interrupting them and framing every question as an open-ended accusation intended to provoke a tantrum from the witness.

(UPDATE4) I can't emphasize this enough: this is what we criminal defense attorneys do in the horrifying, should-never-happen situation in which we have *nothing* to gain from a cross because everything the witness says is true. So you simply try to muddy the waters. It is awful.

(UPDATE5) None of what Necheles says are contradictions are contradictions. She has no evidence at all of Daniels making up her story. The fact that Daniels made money off her story means she is a businesswoman—which she is—not that the story is untrue. To say otherwise is silly.

(UPDATE6) And many of Necheles' questions to Daniels appear to be openly *nasty*—as though she's just trying to appease Trump, who hates Daniels because she's telling the truth about him and how he operates. But jurors *aren't* going to like such nastiness from a defense lawyer.

(UPDATE7) It is incredible how much Trump has sunk his own defense by doing the one thing a defense attorney should never allow their client to do if the case is going to trial: insist on an account of events that is obviously fantastical. It makes it impossible to try the case.

(UPDATE8) I have had thousands of criminal-defendant clients, and only once in my entire career did I have a case where the defendant insisted on a sequence of events that made the case impossible to try but it had to be tried anyway. That is what Trump has done to these lawyers.

(UPDATE9) His assumption, and therefore the assumption he is making his attorneys go with, is that the jurors will detest Daniels as much as he does and distrust her purely on the basis of her past employment. He is making them see the world through his eyes—not that of the jury.

(UPDATE10) The credibility attorneys lose before the jury when they harp on supposed testimonial inconsistencies the jury instinctively sees as mere semantics is breathtaking, I promise you. I would need to be in the room to know more, but this *sounds* like a disaster for Trump.