Day 15: Trump Misfires in Bid for Mistrial

A compelling exchange when the jury was out of the room

May 10 was by far the least significant day of trial so far. We heard mostly “custodial testimony” designed to allow exhibits consisting of phone records, tweets, and significant court filings into evidence. That testimony was important for pre-corroborating Michael Cohen but a snooze.

So I thought I’d review the fireworks over Friday’s motion for mistrial, then make up for my long posts about Stormy Daniels on the stand with a quickie — not a Harrah’s Lake Tahoe Trump quickie — but a short report on Day 15.

After the end of Stormy Daniels' testimony on Thursday, Judge Juan Merchan held a hearing about the defense’s motion for a mistrial. Normally in court, Trump is either paying active attention, dozing or — more often, recently — reading what I am reliably told is a package of glowing clips from the likes of Jonathan Turley and Greg Jarrett. The idea is to buck him up about how innocent he is. Same reason he was happy to see mouthy Jeanine Pirro in the media section.

Before the hearing on a mistrial, Todd Blanche, Trump’s lead lawyer, once again requested permission for Trump to respond to Michael Cohen’s attacks on him. 

Referring to Trump’s repeated criticism of the gag order in a little press pen outside the courtroom, Cohen said “that little cage” is where Trump belongs — “in a fucking cage like an animal.” He’s also said, "Trump 2024? More like Trump 20-24 years,” which is not a bad line if you’re not about to take the stand.

Trump hoped to get out of this portion of the gag order and return fire but Merchan wasn’t buying. “If someone wants to respond to something that has happened in this room, it should be responded to here,” he said, suggesting that Trump was perfectly entitled to take the stand and attack Cohen and Stormy Daniels, but not outside the courtroom.

Merchan reminded the parties that the gag order was in place “because of the nature of attacks...the vitriol,” he said. “Your client’s track record speaks for itself.” He added: “My concern is not just with protecting Miss Daniels, it’s with protecting the integrity as a whole.”

Merchan asked Steinglass to try to control his witness. Steinglass said he had “repeatedly, repeatedly” urged Cohen not to talk. “The fact of the matter is, we have no control over what they [witnesses] do.” 

That isn’t enough for the judge. Merchan directed Steinglass to tell Cohen “that the judge is asking him to refrain from making any more statements.”

After Merchan said this, I peered at him through my binoculars, noticing that he was sporting the beginnings of a mustache and goatee that hadn’t seemed to be there six weeks ago during pre-trial motions. I was rooting for his tonsorial efforts to work. This judge has been outstanding — wise, decent, and smart — all the way through.

There was no suspense when the court considered the defense’s motion for a mistrial. Although it was highly unlikely to be granted, Blanche made some good arguments.

Blanche referred to parts of Daniels’ testimony that he argued were “extremely prejudicial.” He cited the prosecutor’s question about the spanking and what Blanche called Daniels’ “alternate story about blacking out,” “not knowing how her clothes came off,” and recounting how “his 60-year-old skin felt on her 27-year-old body.”

After Blanche sat down, Trump leaned forward and began whispering to Bove, apparently about this full-frontal attack on his skin. Then reporters saw him poke Blanche hard on the arm, an unmistakeable cue to stand up and fight on. When Trump did, the judge, who had been looking down, did a quizzical double-take, as if to say, you already finished your presentation.

Blanche seemed almost plaintive in his objections to Daniels’ quoting Trump’s “If you want to get out of the trailer park…” comment and to the condom questions, which he described as amounting to “a dog whistle for rape.” He concluded: “You can’t unring that bell.”

Prosecutor Joshua Steinglass, who has done an outstanding job in this case, made a strong argument that at least half of Blanche’s examples were contained in the long “interview notes” that the prosecution is required to disclose to the defense. The claim that the DA’s office “ambushed” the defense was “just nonsense.” 

He said that Susan Nacheles had left “a very misleading impression that [Daniels’] story has become radically different from what it always was.”

On the condom issue, “Mr. Trump asked a lot of questions about how testing worked in the adult film industry,” Steinglass said. “It explains his decision not to wear a condom,” and the whole conversation is relevant.

Merchan previewed his instructions to the jury. If the sex happened, the judge said, that “increases the motivation to silence her.” So, it is relevant and admissible. He said he had been recently reviewing his March decisions on pre-trial motions. Those rulings were my first exposure to Merchan, and I found them thoughtful.

Now, he was prepared to apply those rulings to how the evidence had been coming in so far. In rejecting the motion for a mistrial, the judge told Blanche that his blanket denial of any sexual encounter in his opening statement “put the jury in the position to decide who to believe — Donald Trump or Stormy Daniels.” He added that while prosecutors don’t have to prove Daniels’ story of a sexual encounter, “they can let her tell it.”

Necheles tried to explain her failure to object more often on Tuesday and Thursday by claiming that she thought the judge’s pre-trial hearings prevented it. “Wrong,” Merchan told her. He himself had objected to the trailer park reference. “For some unexplained reason, there was no objection to certain testimony,”  including the mention of the condom. “I agree that should have come out,” the judge said. “But for the life of me, I don’t know why Miss Necheles didn’t object.”

That is a serious brushback, and Trump must have noted it. I’m told from reliable sources that she and Trump have not been speaking recently, in part because she refused to sign some pre-trial motions she considered frivolous and damaging to her reputation. 

More fundamentally, Necheles had the balls to confront Trump. In 2023, Trump called her “a loser” for failing to convince a jury to acquit Allen Weisselberg. Necheles, I’m told, was pissed and told the former president that Weisselberg lost because he was guilty. We’ll see this week if she or Emil Bove will handle most of the cross. My bet is on Bove.

In ruling that Daniels’ story had changed enough to merit a mistrial, Merchan brought Roger Ailes into the case. Daniels had told prosecutors before the trial that her viewing of the film Bombshell, which covers Ailes’ sexual harassment and assault, brought back some feelings about her encounter with Trump that she had forgotten. He refused to allow Ailes’ story into evidence but ruled that it did not prompt a significant enough change in Daniels’ story to end the whole case.

“These details add a sense of credibility if the jury [decided] to believe them,” Merchan concluded.

After this illuminating exchange, out of earshot of the jury, of course, Friday’s testimony was a letdown.

Friday opened with Madeleine Westerhaut returning to the stand. Westerhaut, Trump’s personal assistant in the White House, had been called on Thursday to testify on direct about bringing the checks to Trump for his signature and the unorthodox handling of the checks through Keith Schiller, Trump’s bodyguard, who received them at home.

Madeleine Westerhout, Donald Trump’s former personal assistant,

Trump fired Westerhaut in 2019 after press accounts that Westerhaut got drunk at a dinner with reporters and said that Trump couldn’t pick his daughter Tiffany out of a line-up amid another indiscretion that the jury did not learn about. We did hear that she was extremely regretful of her “mistake” and that she wrote a highly flattering book about Trump and her time in the White House.

On cross-examination, Westerhaut broke down in tears when discussing her time in the White House and spoke of her admiration for Trump and First Lady Melania Trump. She told endearing stories of Trump calling his wife “honey” and deferring to her, often phoning to say he would be late for dinner or that she should look out the window and notice the beauty of the Rose Garden. She said that he had treated her kindly when she saw him for the first time in years at a fundraiser. 

This was Trump’s best moment so far. It strengthened the defense’s argument that Trump’s main motive was to protect his family from an extortionist, not to win the election. But on re-direct, the prosecution elicited that Westerhaut’s current employer is Robert O’Brien, Trump’s former national security adviser, reinforcing that she still had strong ties to Trump. Prosecutors destroyed her testimony about Trump’s reaction to the Access Hollywood story because she would not begin working for him until months later.

Westerhaut also reluctantly bolstered the prosecution’s case when she confirmed an email where Ronna Graff, Trump’s longtime assistant, wondered if she had to check with the president-elect before buying a picture frame for “about $650 minus a 15% discount.” I could imagine jurors wondering why he needed to be informed about reasons for a $650 expenditure but not one for $35,000-a-month.

And while Westerhaut’s testimony about Melania seemed at first to be convincing, the fact remains that she has not shown up once at this trial, a fact that cannot have escaped the attention of the jury.

The other witnesses on Friday were Georgia Longstreet, a paralegal for the DA’s office who authenticated tweets that will be entered into evidence, and Daniel Dixon, an AT&T compliance analyst, and Jennie Tomalin, a Verizon senior analyst. They both confirmed that a call came into one of Michael Cohen’s phones that interrupted his phone and likely went to voice mail. 

As he did with an earlier witness, Emil Bove for the defense tried to use innuendo to suggest Cohen’s tape of Trump discussing the Karen McDougal hush money had been tampered with. Once again, he used techno-jargon to confuse the jury, and once again, it didn’t work. But a question remained over whether another call had come into Cohen’s phone when he was talking to Trump.

So the final witness of the day, Jaden Jarmel-Schneider, a young paralegal in the DA’s office responsible for summarizing Cohen’s call records.  On cross, Bove again tried to create confusion over the call that came in and either dropped or went to voice mail. Jarmel-Schneider proved to be a credible and even charming witness who all but ended Bove’s implicit claim that Cohen tampered with the call.

As the judge excused the jury early, we knew we’d be hearing about that call again soon.