Stormy Daniels’ Darker Testimony About Trump Hints at a Forbidden Side of His Trial

Klasfeld’s reporting is part of Just Security’s Trump Trials Clearinghouse.

As Stormy Daniels gears up for her second day of testimony against former President Donald Trump inside a lower Manhattan courtroom, Supreme Court Justice Juan Merchan will likely maintain his close watch over the proceedings.

On Tuesday, the judge sustained more than 50 objections, many of them packed into Daniels’ narration of the darker details of her alleged tryst with Trump, which prosecutors presented as the origin of the alleged 2016 campaign finance conspiracy on which their case relies. Her account cast everything Trump allegedly sought to suppress into stark relief.

The adult film actress quoted the then-real estate mogul coaxing her into having sex with him if she ever wanted to “get out of the trailer park.” Daniels described feeling “blacked out,” although she was not drunk or drugged. The five-foot-seven Daniels portrayed herself as boxed in by Trump, whom she described as “definitely several inches taller and much larger.” She testified that she did not remember how her clothes came off before a “brief” tryst in the “missionary position,” after which she lay “staring at the ceiling” and “trying to think about anything other than what was happening there.” With each uncomfortable detail, the judge sustained another objection.

Daniels was allowed to tell jurors that Trump did not wear a condom, and she felt concerned about that because of her work in the pornographic film industry. She made clear this was a consensual encounter, but she also pointed out that there was an “imbalance of power” heightened by the fact that “there was a bodyguard right outside the door.”

Describing getting ready to leave Trump’s hotel suite, Daniels said the following words twice, verbatim: “My hands were shaking so hard.” Trump denies that any sexual contact took place, and to be clear, Daniels has always denied being any sort of victim. The sex, in her consistent telling, was bad, short, but not criminal.

But in the ears of multiple reporters seated in the gallery, Daniels’ story edged close to a topic the judge had forbidden from trial: the fact that Trump has been accused of sexual assault, numerous times.

In Slate, jurisprudence editor Jeremy Stahl shared his view: “The story Stormy Daniels told was one of sexual coercion.”

Harvey Weinstein’s shadow

Before Trump’s trial began, Justice Merchan explicitly banned prosecutors from telling jurors anything about prior sexual assault accusations against the defendant.

Manhattan District Attorney Alvin Bragg had sought permission to mention that two women, Jessica Leeds and Natasha Stoynoff, came forward after the release of the “Access Hollywood” tape to say that Trump pounced on them in an eerily similar way to the one he described in the infamous video.

Just before the first day of jury selection, the judge emphatically refused to pull their stories into the case.

“They are very, very prejudicial, and at this point, given what we know today, it was just a rumor,” Merchan ruled on April 15. “It was just gossip. Complete hearsay. Did it happen? There’s nothing to prove that. It’s not fair.”

There have been many such rumors surrounding the former president, and one of the most serious survived the exacting scrutiny of civil litigation before a federal jury.

At least 26 women have accused Trump of some form of sexual misconduct, from unwanted kisses to groping to rape, but the former president is currently standing trial for distinctly more white-collar crimes: 34 felony counts of falsifying business records in 2017 to cover up those alleged 2016 campaign and election crimes. Prosecutors can use Trump’s sexual behavior only to prove that he illegally tried to cover-up scandals to influence the election, and the judge has made it clear that he will keep prosecutors on a tight leash in doing so.

In the midst of Trump’s trial, New York’s highest court made clear the danger of allowing too much salacious evidence into trial – by overturning the state’s convictions of disgraced Hollywood producer Harvey Weinstein on that basis.

More than 80 women have accused Weinstein of sexual assault or misconduct, and by all accounts, the New York trial judge in Weinstein’s case had been far more permissive about evidence the prosecutors could use. Six women testified that Weinstein sexually abused them, but only three were directly related to the crimes charged. Weinstein also chose not to testify after the judge granted prosecutors permission to cross-examine him about a wide range of uncharged conduct, in rulings that gave the state’s highest court a break.

“Under our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality,” the state’s top court stated, in granting Weinstein a new trial.

Last week, Trump’s lead attorney Todd Blanche quickly invoked Weinstein’s victory in his client’s defense in the context of the “Access Hollywood” tape. The judge had let prosecutors show a transcript of the footage to the jury, but not the tape itself, which Merchan found too inflammatory for trial. In that act, the judge avoided some of the pitfalls of his colleague who presided over Weinstein’s trial. But Blanche argued that admitting evidence from the Washington Post’s article unveiling the tape would be too unduly prejudicial against his client.

In the face of Daniels’ testimony, Blanche took a stronger line, and his argument was rooted in the more general concerns about unduly prejudicial information getting to the jury. Blanche moved for a mistrial motion — a strong suggestion that, if Trump loses, his lawyers will argue on appeal that more information came before the jury than should have been allowed. Before trial, the defense sought to exclude Daniels’ testimony entirely, in a motion arguing that it would be “unduly prejudicial” because it involved “salacious details of events … which have no place at a trial involving the types of charges at issue.”

More Than 100 Years of Precedent

For now, Merchan appears unconcerned about the Weinstein case.

“I don’t see it having any impact on my ruling,” the judge said in open court on May 3, referring to the Weinstein decision and Merchan’s nuanced decision on the “Access Hollywood” tape. “The Court of Appeals didn’t lay out any new law, they simply ruled on the facts of that case.”

At its core, Weinstein’s case simply applied the long-established rules of the more than century-old case of People v. Molineux.

Named after the defendant in the “Great Poison Trial,” chemist Roland Burnham Molineux was accused double-murderer and son of a renowned Civil War general and preeminent New York City power broker. A New York jury found Molineux guilty of murdering a woman named Katherine Adams, who drank a bottle of Bromo-Seltzer laced with cyanide intended for Henry Cornish, the director of an athletic club with whom Molineux had a feud. Prosecutors persuaded jurors of Molineux’s guilt in part by suggesting that he also poisoned another man named Henry Barnet, a crime with which the defendant had not been charged.

In 1901, New York’s highest court overturned Molineux’s conviction in what became a precedent upholding the principle that handed Weinstein a new trial over 120 years later.

“Over a century later, we reaffirm that no person accused of illegality may be judged on proof of uncharged crimes that serve only to establish the accused’s propensity for criminal behavior,” the majority wrote of Weinstein, citing Molineux. “At trial, a defendant stands to account for the crimes as charged. Proof of prior crimes and uncharged bad acts are the rare exception to this fundamental rule of criminal law.”

The panel also criticized Weinstein’s trial judge for chilling the producer’s ability to testify in his own defense, by allowing prosecutors to confront him with other prior bad acts, under a separate precedent known as People v. Sandoval. By contrast, Justice Merchan barred Trump’s prosecutors from mentioning the fact that a federal jury found him liable for sexually abusing E. Jean Carroll, suggesting the judge is mindful of these guardrails.

For tea The New Yorker‘s Ronan Farrow, whose book “Catch and Kill” became an icon of the MeToo movement, the Weinstein decision potentially draws Trump’s trial into the same “thicket of legal questions” that proved a boon to the disgraced producer. But that thesis should not be overstated. For one, Daniels is no Molineux witness: She is one of the central fact witnesses. While Merchan must ensure her testimony is not unduly prejudicial, the judge would likely view it as a category mistake to apply the Weinstein ruling to her testimony.

More relevant, Merchan has already acted to insulate the trial from the concerns raised in the Weinstein case. Prosecutors, for example, cannot mention the names of the two women who would have indeed been potential Molineux witnesses if called: Leeds and Stoynoff. Trump also scored significant victories in avoiding the visceral effects of having jurors watch the “Access Hollywood” footage or hear his voice on the audio recording of it. Merchan held that the tape “falls under several Molineux exceptions,” but he nevertheless limited how jurors would be exposed to the tape “to avoid undue prejudice to the Defendant.” In these and other rulings, Merchan clearly has paid attention to these issues before Weinstein’s attorney won their client a second trial.

Merchan appears even more mindful of the issues now, telling prosecutors, twice, that some of Daniels’ testimony had been “better left unsaid.” The judge will undoubtedly keep a close watch on that line as Daniels continues her testimony on Thursday.