Analysis by Stephen Collinson,
Donald Trump is heading into the most perilous phase of his hush money trial aside from the moment when the jury retires to consider its verdict.
Former adult film star Stormy Daniels is back on the stand on Thursday to continue what has been at times explicit and cringe-worth testimony about her alleged sexual encounter with Trump nearly two decades ago, which set off a winding chain of events that led to the first criminal trial of an ex-president. Her evidence on Tuesday was deeply embarrassing for Trump and drew an aggressive cross-examination from his attorney trying to shatter Daniels’ credibility.
Trump spent Wednesday, the trial’s off day, at home in Florida. He will return deeply at odds with Judge Juan Merchan, who had earlier threatened him with jail if he again infringes a gag order he has already flouted 10 times. Merchan also instructed Trump’s attorney, Todd Blanche, to rein in his client after complaining that the defendant had cursed audibly and shaken his head during Daniels’ testimony. The judge was concerned that the jury might notice the witness being intimidated — which he warned he could not allow to continue.
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So far, Trump — who has launched searing attacks on the judge — has managed to refrain from openly attacking Daniels since she took the stand. But her continued testimony will test him further. And her appearance is only an appetizer for expected explosive evidence in the coming days of the biggest star witness, Trump’s former lawyer and fixer Michael Cohen. His testimony is likely to be far more germane to the underling charges that Trump falsified business records to cover up a hush money payment to buy Daniels’ silence about the liaison she described on Tuesday. Trump denies the affair and has pleaded not guilty in the case.
Cohen at the epicenter of Trump’s world
Cohen — a colorful figure in his own right who often tried to replicate his boss’ bravado, once saying he’d “take a bullet” for Trump — facilitated the $130,000 payment to Daniels. The ex-president, who now views Cohen as a traitor, has spent months seeking to destroy his usefulness as a witness by highlighting time he spent in jail for what a judge once called “a veritable smorgasbord of fraudulent conduct.”
Daniels’ testimony and a coming appearance from Cohen could amount to a forensic excavation of Trump’s past life that he’d much rather never saw the light of day — and the hush money payment he made before the 2016 election is proof of that. Now it’s bubbling up years after the alleged transgressions took place during a new White House campaign.
The coming days will therefore require qualities that Trump has always struggled to demonstrate in a riotous life in business and politics: restraint and self-discipline. Any behavior that could be construed as witness intimidation, or an attempt to influence the jury on social media or in the courtroom, could push Merchan over the red line he established earlier this week. The judge told Trump he didn’t want to slap him with jail time, which could be as limited as a matter of hours, but if he had to act to protect the integrity of the trial, he would.
Sarah Matthews, a former Trump White House deputy press secretary, told CNN’s Jim Acosta on Wednesday that the former president’s mood would be brittle following his ordeal in court on Tuesday. “I certainly wouldn’t want to be working on his campaign team or be one of his attorneys right now, just given, I think, that he’s more than certainly lashing out at them. He’s upset after that testimony,” Matthews said.
Yet Matthews argued that Trump could temper his reactions in public for fear of the consequences — even if he says he’s willing to spend time behind bars to bolster his campaign narrative that he’s a persecuted political dissident. “I don’t know if we’ll see Donald Trump break the gag order again. Look, he’s a germaphobe,” Matthews said. “I don’t think he wants to go to jail, honestly. … I don’t think that it will ultimately come to that. I think he’ll push it up until the edge.”
Trump has a history of digging himself into deeper legal holes
Cohen’s time on the stand could be especially excruciating for the former president. While Daniels’ account of their alleged encounter in a hotel suite in Lake Tahoe in 2006 was painfully embarrassing, she is not regarded as holding the key to the case against him. Prosecutors drew out her story because it was necessary to explain to the jury why Trump was so keen to hide it with a cash payoff before the 2016 election, which they allege was an attempt to mislead voters and interfere in a federal election.
But Cohen is the most critical pillar of the entire case — his actions and knowledge get directly to the question of whether the former president knowingly falsified business records in a way that the prosecution can prove to the jury beyond a reasonable doubt.
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He can therefore be expected to face an even more withering cross-examination from Trump’s legal team than Daniels did. Indeed, dismantling his evidence represents Trump’s best hope of introducing doubt into the minds of one or more jurors that could lead to an acquittal.
Trump’s hair trigger temper is often activated when he feels he’s being unfairly attacked. And his life’s creed dictates that when he’s hit hard, he hits back harder.
His acting out was especially acute during the civil fraud trial targeting him, his adult sons and the Trump Organization that ended in a near half-billion-dollar judgment against them. His histrionics peaked with extraordinary testimony in his own defense that at times seemed more like a campaign stunt than a somber court proceeding. He constantly trampled court decorum and drove Judge Arthur Engoron to once plead with Trump’s lawyer, “I beseech you to control him if you can.”
While Trump wasn’t sanctioned, the judge alluded to the former president’s contempt for the case and the rule of law when detailing the massive fraud that was designed to get Trump more favorable treatment from financial institutions. Engoron said of Trump and his sons that “their complete lack of contrition and remorse borders on pathological.” In yet another case, Trump’s continued attacks on the writer E. Jean Carroll after a defamation trial factored into the size of an $83 million finding against him.
The parallels are not exact in Trump’s first criminal trial. Trump is not on the stand, so he has less opportunity to challenge Merchan’s authority over the court. (Many legal experts believe any attempt by Trump to honor his vows to testify in his own defense would be a legal blunder of huge proportions). At the same time, however, the presence of a jury in this case means he has even less latitude to misbehave, especially after Merchan’s two warnings put him on even thinner ice.
A former president who built a personal brand on always being the most dominant figure in the room has been slow to learn that his displays of contempt in the courtroom keep getting him in trouble. The coming days of the hush money trial will show whether that has changed.
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