Mr. Trump is charged in a criminal case of falsifying some business records of his company. This is a felony-level crimes charged in New York are, roughly speaking, this:  one falsifies business records in furtherance of a criminal purpose, including covering it up. Mr. Trump is charged with having committed a crime by falsifying records in order to cover up sexual activities which occurred years earlier. The previous activity was at least one sexual encounter with a “queen” of pornographic presentation. This was not a crime. What was a crime was to try and win an election by covering it up, i.e., lying about the affair?

The prosecutor is presenting 30+ acts of falsification of records, some of them involving checks signed by Mr. Trump.

Now, Mr. Trump has denied that this sexual encounter (or sex acts) ever occurred. Stormy Daniels, the Porn Queen has asserted under oath that it did happen. She has testified to the occurrence of one such event in the trial that is occurring in the Spring of 2024. She did this several times during the week of May 5, 2024, including May 9th.

Ms. Daniels testified in considerable detail about her encounter with Mr. Trump. One interesting fact is that it was not a long encounter on the evening it happened – in and out, quickly, as one might say.  

Ms. Daniels was paid a considerable sum of money to keep her quiet about the encounter during the runup to the 2016 election. The sum paid to her was well in excess of $100,000.00. In other words, Mr. Trump was buying her silence about an event which he has asserted never occurred. Mr. Trump utilized the services of Michael Cohen, who sometimes functioned as Mr. Trump’s lawyer, but who, says the prosecution, was not functioning as a lawyer in connection with the Stormy Daniels “affair.” Delivering a sack of money – no matter as to its form is not necessarily the function of a lawyer. Indeed, if it involves a criminal activity, it is likely not going to be a lawyer’s function precisely because it may be a crime. Lawyers try to avoid such activity, and they certainly do not send invoice regarding it.

Technically, the criminal event which generated this prosecution – Mr. Trump making and covering up hush money payments for having had sexual intercourse with Ms. Daniels – need not have actually happened in order for the jury to find Mr. Trump guilty of the felonious crime of falsifying business records, regarding – even indirectly – Mr. Trump’s having had sex with Ms. Daniels makes winning more likely.

Now, Ms. Daniels testified in considerable detail about the sexual encounter, including intimate details of what Mr. Trump was wearing when she came into the hotel room they used – his special pair of luxury pajamas – how he smelled, and so forth.

It is a well-established principle of trial jurisprudence and technique, and obvious wisdom that it is prudent and important for the plaintiff to have a witness testify truthfully and in detail as to the details of an event, if one wants the decider of facts (the jury) to believe an event took place and what it was like.  The wisdom of practical reason dictates that it is imprudent to fail to do so. This is exactly what lawyers for the State of New York have done.

The defendant’s counsel eventually moved to exclude this testimony since they claimed it was not relevant to the criminal charge, and that it made their client “look bad,” and was overly prejudicial. In addition, they, and the defendant himself, complained to the public that Mr. Trump was being treated unfairly. Moreover, Mr. Trump and his defense team have whined about the power of the evidence, although they did not go further, except that the judge should not have admitted into the evidence before the jury.  (Wait! Mr. Trump has asserted repeatedly outside the courthouse – or outside the court room anyway – that the event never happened, in other words, that Ms. Daniels is mistaken about what she is saying or that she is lying).

Mr. Trump’s view is erroneous: She says X; he says not-X, and her assertion “feels” more plausible if she testifies in detail and therefore less convincing if she restricts her testimony. He and his lawyers can squawk all they want to but that does not affect the legal soundness of what the plaintiff-prosecutors are pursuing. The State of New York bears the burden of proof. It seems to me that if Ms. Daniels can testify “helpfully” as to the size and shape of his penis on the basis of what she saw or what the defendant asserted to her it would probably be the prosecutor’s duty to submit her personal knowledge on this matter to the jury. Of course, Mr. Trump has the opportunity to impeach her by authoritative cross in testimony or physical evidence.

The defendant Mr. Trump has moved twice for a mistrial. Details about the scene of the sex appears to be the reason for the motions. The likelihood that these motions would be granted is zero, or close to it.

The defendant is claiming that the fact that Ms. Daniels has acted contrary to a non-disclosure agreement regarding her speaking out about the incident entitles Mr. Trump to a mistrial or to a dismissal of the prosecution’s case. This posture is false and the idea absurd. If Ms. Daniels has breached a contract requiring silence, Mr. Trump’s remedy is an action for breach of contract and not a jury and then court finding of not-guilty to a felony. Having breached a contract does not make the testimony of the breaching party false.

If it entitles the defendant to anything, it is a question in cross examination. “Isn’t a fact that you are trying to get more money out of Mr. Trump, when you have already been paid a substantial sum.” She might reply to this question as follows: “Since I signed that non-disclosure agreement, I have been insulted, harassed, ridiculed, and economically assaulted many times my Mr. Trump and his cronies, confederates, minions, and operatives since the nondisclosure document was signed. The contract covered only what happened before the contract was formed, and Mr. Trump has waived any right to complain he might have had.  I am seeking money for having told the truth. In addition, I am here today based upon a demand (subpoena) from the State of New York.” And there is yet more to be said along these lines.

Quinn’s Comment: Perhaps the prosecutors are the ones who should be saying at least some of this.

Furthermore, there is another species of personal knowledge which would have been easy to introduce which is based on physical sight, if any. That evidence pertains to the size and shape of his penis. A capable prosecutor, if Ms. Daniels could testify reliably, would be inclined to introduce it. If she testified “Yes. I saw it. The lights were on well enough to notice it. Indeed, it was obvious he wanted me to notice it.” My next question would be, “What did you see?” She might say, “It was much smaller than I thought it would be given and the ‘Alpha Male’ way he presents himself”. “What, if anything did you recognize from your sense of touch?” She might say this, “Nothing. Very ordinary, and not really very hard. In addition, the whole thing, penetration to ejaculation went very quickly.”

This line of testimony vividly pictures the encounter Mr. Trump says never happened. Of course, in theory, the event need not have actually happened for Mr. Trump to authorize Ms. Daniel receiving well more than $100,000 to keep he silent 10 years or more the encounter took place.

Mr. Trump’s lawyers and commutators on broadcasts from “Fox News” are claiming that any such testimony is not relevant to the indictment. This is nonsense. Mr. Trump claims no such event ever took place and therefore contends that he could not have made misrepresentations in New York business records. Well, the fact is that if evidence can be provided that Mr. Trump was present at and participated in a short erotic “meeting” with Ms. Daniels, then his defense falls apart or is, at least, refuted in key ways.

So, what lay open to defense counsel to say about the encounter in cross examination? Of course, their client denies that it ever happened. Most every question about what actually happened would suggest or entail Mr. Trump’s physical presence, something he denies.

Undoubtedly, defense counsel considered developing the idea that Mr. Daniels was with to the wrong man. “Are you certain that the man you had sex with was actually the real Donald Trump. After all, you had never actually met him. Certainly, you wanted this person to be Mr. Trump. You claim you wanted him to give you a job on his TV show, true?” “Well, you are claiming that after 10 years you are certain it was Mr. Trump, correct? [Ms. Daniels must answer ‘Yes.”] “But in the intervening 10 years – not to mention years before that – you have had sex with many different men, true?”

There is a prima facie rule governing cross examination, “Never ask a question to which you do not know the answer.”  But notice: this is only a prima facie rule. That tactical advice does not apply in this case. Examining counsel need not care how the question is answered. If she says, “No,” the chances are that she will not be believed, and her general credibility will be undermined. But if she says “Yes,” then the reliability of what she asserts (or implies), “It was definitely he. No doubt about it.” This answer too is damaging to Ms. Daniels’ credibility, especially since she is testifying under oath.

It was unproductive, I think, for defense counsel to try to prove that Ms. Daniels “hates” their client and is speaking solely from that perspective. The word “hate” is a very powerful word, but it’s meaning is often unclear and sometimes implausible.  At the same time, other phrases may not work either. What about “dislikes,” or “is disgusted by,” or “is contemptuous of him.” See below.

There is one exception to this line of questioning, “So, Ms. Daniels, you admit that you have observed a large number of penises.” Her answer might be this, “Yes. I am an adult film actor – what used to be called an ‘actress.’ Many men acting in such movies must show themselves naked from at least the waste down, though complete nakedness is also common. These men often show themselves engaging in self-administered masturbation, something often called ‘jacking off.’ Of course, there are cooperative forms of this activity that also appears in many adult films. And various acts of having sex of various standard kinds are also often involved, just as one was between Mr. Trump and me.”

These questions might not be “askable,” by the defense on “cross,” given Ms. Daniels’ testimony of May 9, 2024. Under cross examination then she said that the sex act between them went quickly. This does not sound like genuine physical intimacy. An experienced observer might say to him or herself, “That’s awfully fast. What was going on? No wonder he says not such encounter happened.” Many women might be disturbed by the high speed of the physical encounter. Many men would feel a bit of shame for such a poor performance. Whether that speed was a typical incident of premature ejaculation is not something to which Ms. Daniels could testify since she has not had repeated sexual intercourse with Mr. Trump.

One might conjecture that it was the speed of the intercourse which led to Mr. Trump’s big-money desire to keep information about the encounter swept under the rug. Knowing this truth – if that’s what it is – might cost Mr. Trump more than a few votes among males, as well as females.

So how should the defendant’s cross examination have ended? The defense liked the “motivated from hate” question: “Isn’t it a fact, Ms. Daniels, that you passionately hate Donald here?” “You have called him some filthy, derogatory names, haven’t you?” “You would like to see him destroyed, true?” Or at least denied the presidency? “And sent to prison, right?” “So, you think the jury should believe you, even though you intensely want to make our client suffer, yes?”

The trouble for the defense approach is that strong negative emotions do not necessarily destroy objectivity, especially if there is something positive just as important, for example, the love of truth and an embracing of justice. No doubt the prosecutors explained this to Ms. Daniels several times. This is a fallacy that defense counsel makes too often, forgetting that real cross examination in both civil and criminal cases, is not the same one sees in movie or TV performances.

When should the last statement by defense counsel be “No further questions.” It’s hard to know. Context is important. Defense examination as to the encounter may not be over yet. If there is a redirect examination, the defense will have another opportunity to cross examine. And the defense has not started putting on its case yet, so Mr. Trump may testify himself. If he testifies himself, he will face cross examination. Many court watchers hope he will do so. “Won’t that be a hoot,” one said to me this very morning.

Not every aspect of every battle must be or even can be won. All good military generals know this. Napoleon learned it the hard way, as did Hitler. Mr. Trump hates to lose even an unneeded component of some pointless battles, even one’s he imprudently started.

Mr. Trump’s current fight may be his Stalingrad, and most of us know how that one came out, especially if he decides to testify himself.

Extraordinarily prideful people often see themselves as “All Powerful and Therefore Indestructible.” Of course, this idea makes one think he is a god, or is actually God Almighty.  Mr. Trump might do well to remember that excessive pride causes very hard falls.