Read our ongoing coverage of Donald Trump’s first criminal trial here.
Last week, members of Donald Trump’s defense team put the first serious dent in the prosecution’s case in the Stormy Daniels hush money trial. It came when they got their turn to cross-examine one of the prosecution’s witnesses, former Daniel’s attorney Keith Davidson, who represented the adult film actor at the earliest stages of this scandal. Trump’s attorney Emil Bove hammered Davidson with secretly recorded conversations between Davidson and Trump fixer Michael Cohen. In those conversations, Davidson—who spent much of the week testifying about Cohen’s extraordinary efforts to keep Daniels quiet in the days leading up to the 2016 election—appeared to reveal private conversations with his client that portrayed her as trying to extort Trump.
It was from this approach to Davidson that a view of Trump’s ultimate defense in this case began to take shape. This was not a “conspiracy” to illegally influence the 2016 election via unreported in-kind contributions, it seems Trump’s attorney’s will argue. Instead, it was a shakedown by a porn star making false charges and a sleazy celebrity extortion-artist lawyer of a presidential candidate.
This defense case will have its benefits and its downsides. First, the upsides: It appears partially supported by some of those audio recordings between Davidson and Cohen that were played for the jury Thursday. In one such recording—taken March 7, 2018, after the Wall Street Journal had broken the hush money story but while all parties were still denying it—Davidson suggests that Daniels had “settler’s remorse” and, hypothetically, when “you realize you have a lot more leverage, you try to settle it twice.”
Even more damning, was another recording, this one from April 4, 2018—just a few weeks later—in which Davidson suggested that Daniels, who by that point had fired Davidson and hired Michael Avenatti, was lying in her public suggestions that she had been forced into a settlement.
That transcript from Davidson’s side of the conversation, discussing an upcoming interview set to be given by Anthony Kotzev, then the boyfriend of Daniels’ publicist Gina Rodriguez:
I wouldn’t be the least bit surprised if he comes out and says, “You know what? Stormy Daniels, she wanted this money more than you can ever imagine. I remember hearing her on the phone, saying, ‘You fucking Keith Davidson. You better settle this goddamn story. Because if he loses this election—and he’s going to lose—if he loses this election, we lose all fucking leverage. This case is worth zero. And if that happens, I’m going to sue you because you lost this opportunity. So settle this fucking case.’ “That’s a far cry… from being, you know, bullied and pushed into settling a case.
There’s also a third such recording, in which Davidson implies that Avenatti was “lying his ass off” and Daniels was lying as well when they claimed she had been harassed by an apparent Trump henchman back in 2011.
How damming is any of this? It’s worth remembering that Davidson and Daniels had parted ways at this point and Davidson was being portrayed in the press as a villain who had forced Daniels to take a bum deal, so perhaps it’s unsurprising that he was waiting for Cohen. Still, even prior to playing the audio, Bove had muddied Davidson up by asking him if these conversations had ever taken place, and getting “I can’t recall” for answer after answer after answer. (Davidson also could not recall the details of a number of other similar celebrity settlement deals he had allegedly orchestrated over respective sex scandals, involving, among others, Hulk Hogan, Charlie Sheen, and Tila Tequila.)
Irrespective of how transparently unbelievable Davidson may seem, this was the first time that the defense began to present something that may be compelling to this jury as a reason to vote to acquit. And as a reminder: All the prosecution has to do is convince one juror that the innocent victim here was Trump, a person who, the defense is arguing, was targeted in an extortion plot by Davidson, a lawyer who had in the past come dangerously close to the line of breaking the law in similar cases. If just one juror is convinced, Trump gets a hung jury (and he will declare that a win).
Which brings me to the flaws with this defense. The problem is that what it’s reaching for is a jury nullification argument—that is, the strategy doesn’t argue the legal merits of the case but leans on the potential emotions of jurors to sympathize with Trump and to vote to acquit, despite the evidence .
Another problem for the defense is the narrative it could present outside the courtroom. This approach goes after Daniels in a way that might backfire, with her coming off as the victim of Trump’s abuse yet again. Given Trump’s history with women, and the fact that this trial concerns the question of whether he had been cheating on his wife with a porn star months after the former had given birth, tearing down Daniels might not be the best approach while their client is also a candidate for president.
But the third problem, and perhaps the biggest one, is that these recordings may actually help disprove one of Trump’s other major defences. Remember, the prosecution has elevated its charges to a felony level specifically because of how it has argued that the payoff counts as campaign finance crimes. One of the former president’s responses to that claim is to negate the campaign finance part—his lawyers argue that Trump agreed to this hush money deal in order to protect his family, not to win an election.
“The reference to leverage going away after a certain date is totally consistent with a theory that the payments were election-related rather than personal,” election law expert Richard Hasen told me. “After all, there is no expiration date on a spouse being pissed off about an affair.”
Indeed, the suggestion that Daniels was maximizing her “leverage” against Trump to receive a payout may serve to undermine her credibility, but it doesn’t explain away Trump’s own alleged motives and actions. Specifically, it does nothing to rebut former American Media honcho David Pecker’s incredibly damning testimony about his scheme with Trump to cover up such stories in order to influence the election, starting during an August 2015 Trump Tower meeting with Trump himself.
The tapes serve not just the defense. The prosecution has its own recordings of Davidson and Cohen that look much better for its case. One that was played on Thursday, from Oct. 16, 2017, displayed Cohen venting his rage at Trump for his lack of support following what Cohen believed were his own extreme displays of loyalty in the Stormy Daniels matter. “Who else would do that for somebody, who else?” Cohen complains. “What about me? And I can’t—I can’t even tell you how many times he said to me, you know, ‘I hate the fact that we did it.’ “
If Cohen gets on the stand and is able to convince the jury that the “he” in this statement was Donald Trump and the “we” was him and Trump, it might not matter how badly the defense is able to portray Stormy Daniels.
