Day Nine: Pre-Corroborating a "Jerk"

How Keith Davidson’s testimony is bolstering the prosecution’s case

On Day Nine, a judge held a former president of the United States in contempt of court and threatened jail time if he didn’t stop attacking jurors and witnesses. Think about that for a moment. At any other moment in American history, this news would have produced banner headlines, some with exclamation points. Now, it wasn’t even the top story from the courtroom.

That’s thanks to the testimony of Keith Davidson, the Beverly Hills lawyer who represented both Karen McDougal and Stormy Daniels. Davidson on the stand did more than bolster the prosecution’s narrative and pre-corroborate Michael Cohen’s forthcoming testimony; he gave jurors a permission slip to believe Cohen’s story even if they think he’s a “jerk” (Davidson’s description) and big-time liar.

Here’s the key exchange of the day:

Prosecutor Joshua Steinglass: “Even after he [Cohen] said, ‘I’ll just do it myself,’ where did you understand the money would be coming from?”

Judge Juan Merchan immediately overrode the defense’s objection.

Keith Davidson: “From Donald Trump or some corporate affiliation thereof.”

That was Davidson’s understanding based on all of his texts and calls with Cohen, and it will likely be the jury’s understanding based on all of the evidence being amassed.

While Davidson is one step removed from Trump, the ground between them is now being covered by bank records, texts, videos, and emails that will make Cohen’s first-hand account much stronger under cross-examination. The same was true of David Pecker’s testimony last week.

Day Nine seemed different from the start. Normally, when I arrive at the courthouse at 7:15 a.m., I go first to the holding pen across Centre St. that is designated for protesters. That’s in tiny Collect Pond Park, named for the 60-foot-deep 18th-century pond that collected nearby springs and, for a time, provided drinking water for the area.

After Day One, it was collecting few pro-Trump protesters and providing no real support for him. On most mornings, there was literally no one in the park. By lunch, five or six would gather with the hope of attracting the attention of the dozen or so TV news camera positions set up between the pen and the courthouse. And after adjournment, a few more might come by to shout at a slightly larger group of anti-Trump protesters.

On the eve of the trial, Trump had promised a “MASSIVE outpouring of peaceful patriotic support” and later falsely complained that his people “are rudely and systematically shut down and ushered off to far away ‘holding areas.’”

This made me think of The Wizard of Oz. After Toto pulls back the curtain, the camera used in the 1939 classic catches a much-reduced wizard from the rear, furiously spinning dials and shouting plaintively, “Pay no attention to that man behind the curtain.” 

With my seat in the courtroom, I’m viewing Donald Trump every day from the rear, but that’s where the similarity ends. In the movie, the self-described “very bad wizard” turns into a decent man. Not to mention that the very last thing Trump would ever say is, “pay no attention” to me.

To get more attention, Trump made some adjustments over the weekend. He bullied his lawyers for not doing a better job; apparently put the word out (I have no proof) for more people to show up outside the courthouse — and three dozen did this morning, with two huge Trump flags; and for the first time brought a family member — his son Eric — with him to court. Maybe that was after Lawrence O’Donnell pointed out on MSNBC that even Jeffrey Dahmer’s parents showed up for his trial.

Along with two senior campaign advisers, Susan Wiles and Jason Miller, Trump also brought Texas Attorney General Ken Paxton, the gay-bashing impeached Tea Party extremist who last month barely avoided going on trial for tax fraud. I guess Paxton is about the closest thing Trump has nowadays to a friend. Trump now understands that he needs to fill up that row just behind him where the two Secret Service agents are. We’ll see which stooges and whack-jobs get the call.

Judge Merchan opened the day by blandly announcing his decision to hold Trump in contempt on nine of the ten counts in the contempt motion brought by the prosecution and referred everyone to his written opinion. The only count for which he wasn’t fined was a Truth Social post attacking Michael Avenatti, the imprisoned former lawyer for Stormy Daniels, who savaged Trump online. Merchan had earlier determined that to be permissible under the gag order, each Trump attack on a witness (in this count, it was Stormy Daniels) had to be in response to something specific. The judge essentially ruled that other than his shot at Avenatti and Avenatti’s old client, the other ten odious insults of witnesses and jurors had been unprovoked.

The prosecution asked for fines, not jail, and the law only allows fines of up to $1,000 per count. So Trump owes the court $9,000, though he will likely have to reach for more pocket change after the judge rules on several subsequent insults. In his order, Merchan bemoaned the fact that he could not “impose a fine more commensurate with the wealth of the contemnor [person held in contempt].” So he said he must “therefore consider whether, in some instances, jail may be a necessary punishment.”

For all his claims that it would be “my great honor” to go to jail for contempt, Trump is — as his niece Mary Trump explains — terrified of it. So he quickly complied with the gag order by pulling down all of the offending posts and showed signs of respecting an informal ceasefire with Michael Cohen, who, after tweeting about Trump’s alleged incontinence (“Hey Von ShitzInPantz…your attacks of me stink of desperation”), announced on April 24 that he wouldn’t comment further about the trial until after he testifies. If he does, the judge made clear that Cohen, too, could face contempt charges.

The first witness of the day was Gary Farro, who was Cohen’s private wealth manager at First Republic Bank, just down the street from Trump Tower. Farro was part of what lawyers call the “paperwork” part of the trial, where names, dates, transactions, and the like are nailed down. This is testimony that makes you understand why Trump is falling asleep. Reporters can’t — we’re too busy clacking away on our laptops — and the jurors seemed to be paying attention.

Farro’s testimony began last Friday, right after we heard from Rhona Graff, Trump’s longtime assistant, who — like everyone else so far — testified under subpoena. Graff explained in a winning way that Trump was a respectful boss, but she confirmed that he kept contact information for both Karen McDougal and Stormy Daniels and was present at Trump Tower on key dates. On super-friendly cross, she explained the presence of Stormy Daniels one day in the reception area of Trump’s office by claiming that her colleagues surmised that the porn star was being considered for a slot on Celebrity Apprentice. When she stepped down from the stand, Trump looked as if he wanted to embrace her but settled for squeezing her hand.

Farro’s testimony was important because it confirmed key details of the shell company Cohen created in October of 2016 to pay Davidson the $130,00 in hush money. Cohen misled the bank into thinking the firm he called Essential Consultants LLC was a legitimate real estate firm. He established the LLC, opened the new account, tapped his home equity line of credit, and wired the funds to Davidson in one 24-hour period, which is not uncommon in the real estate business. This was the same day, we later learned, that Davidson was telling Cohen to Show Me the Money or his porn star client would blow up the Trump campaign two weeks before the election.

The prosecution meticulously assembled each time stamp, fund transfer notification, confirmation by other bank employees, and another relevant record, all with the aim of proving to the jury that Trump’s criminal reimbursement of Cohen was not part of a “legal retainer,” as the defense is claiming.

Todd Blanche’s cross-examination was pro forma and pointless. As George Conway told me and Harry Litman over lunch, Blanche should have borrowed from My Cousin Vinnie by asking the witness only one question — in this case, maybe something like, “Did you ever see the name Donald Trump in any of these transactions?”— and sat down triumphantly. Instead, Blanche, who is reportedly under pressure from Trump to be aggressive, may have raised eyebrows in the jury box by going down time-consuming blind alleys.

Tuesday’s other witnesses included Robert Browning, C-SPAN’s archivist, who validated the video of Trump saying late in the 2016 campaign that the allegations of women “are 100 percent fiction” and that “if five percent think it’s true, maybe ten percent, we don’t win.” The prosecution will introduce this exhibit later to prove Trump’s motive for paying the hush money. Another C-SPAN clip showed Trump calling Cohen “a very talented lawyer.”

Phillip Thompson, custodian of records at a court reporter company, previewed upcoming testimony by confirming the accuracy of transcripts involving E.Jean Carroll’s civil suit and a video of Trump saying he was married in 2005 (likely to be introduced when we hear more testimony about the 2006-07 affair with Karen McDougal). In 2017, Trump publicly claimed that the Access Hollywood tape was a fraud. Bad move. In a videotaped deposition, we will see again that he confirms that it’s his voice.

Keith Davidson cut a smooth and dapper figure as he took the stand. He testified that he spoke to his good friend Dylan Howard, the Australian-born chief content officer of AMI, several times a week, in part because Howard considered Davidson and Gina Rodriguez, a talent agent, as his best sources for show business dirt. As we learned from David Pecker, Howard is back in Australia and too ill to testify, which makes Davidson’s testimony even more important.

In 2011, a bottom-dwelling website called dirty.com published an item saying that Trump was having an affair with porn star Stormy Daniels. Rodriguez told Davidson, “Some jerk called me and was very, very aggressive and threatened to sue me.” The “jerk,” Davidson confirmed, was Michael Cohen.

Davidson called Cohen. “Before I could barely get my name out, I was met with a hostile barrage of insults and allegations that went on for quite a while,” Davidson testified. He was just screaming…he believed Stormy Daniels was behind the story.”

“Finally, after he finished, I explained that I was calling because my client did not want the story published.” Davidson was already seeking a cease-and-desist order that got the item taken down.

At this point, Davidson began testifying about his other client, Karen McDougal.

Davidson texted Howard in the summer of 2016 that he had a “blockbuster story” to sell about Trump’s affair with McDougal.

Howard replied: “I will get you more than anyone for it. You know why.” The reason why, Davidson testified, was the friendship between Trump and David Pecker.

Howard explained all the things AMI would do for McDougal’s career in health and fitness if she agreed not to talk:  “We are going to lay it on thick for her.”

Davidson texted back: “Good. Throw in an ambassadorship for me. I’m thinking the Isle of Man.”

Both AMI and ABC News wanted the story, but for different reasons: AMI wanted it to kill it and protect Trump, while ABC News investigative correspondent Brian Ross wanted it because it was an explosive story about the man who had just won the Republican nomination for president.

“I was trying to play two entities off of each other,” Davidson testified, “to create a sense of urgency.”

When AMI seemed to be slow in completing its deal with Davidson for the life rights to McDougal’s story, which included a clause that prevented her from talking about any physical relationship with a “then-married man,” Davidson texted his friend Howard:  “Don’t forget about Cohen. Time is of the essence. The girl is being cornered by the estrogen mafia.”

On the stand, Davidson was visibly embarrassed about calling the women who wanted McDougal to take down Trump on ABC News “the estrogen mafia,” but he kept talking: “Karen was teetering. She was about to make a deal with ABC.”

After the court adjourned, I called Ross, a legend in our business whom I’ve known for years, to ask what happened. “We had it all set. We picked the date, camera crews, make-up,” he told me. “Then she called and said, ‘“My family doesn’t want me to do it.’” Ross thinks the real reason this explosive story didn’t come out was that ABC News, which doesn’t pay for stories, became leverage: “In retrospect, they were using us to get to Trump for the money.”

After the deal closed on August 5, Davidson called Cohen to “let him know as a professional courtesy that the deal involving his client had closed.”

Prosecutor Steinglass asked, “What client is that?”

Davidson: “Donald Trump.”

Their interactions had been harried and unpleasant, but now everything was done. “I told [Cohen] it would never have happened without him.”

Davidson now turned his attention to Stormy Daniels. In early fall, Gina Rodriguez was having trouble selling her client’s tawdry story. However, after the Access Hollywood tape aired on October 7, Cohen grew desperate to suppress it, especially after dirty.com re-posted its 2016 article.

The text chains now grew fatalistic.

Davidson: “Trump is fucked.”

Howard: “Wave the white flag. It’s over, people.”

At first, AMI, under heavy pressure from Cohen, agreed to buy and kill the story for $120,000. Howard asked Rodriguez to call Cohen and finish the deal. Rodriguez then asked Davidson to do it, and he refused, telling the court, “The moral of the story was no one wanted to talk to Cohen.” (Jurors chuckled at that). Davidson finally called him and negotiated an extra $10,000 as a commission for him and Rodriguez, which was much lower than usual, but they knew by then that Trump was cheap.

Then Pecker got cold feet, and AMI backed out of the deal.

Howard: “Over to you two.”

Davidson testified that meant “Michael Cohen and I.”

Prosecutor Steinglass: “Was it unusual for Dylan Howard to connect you to someone outside AMI to purchase a story?”

Davidson: “This was the only time that happened.”

Rodriguez told Davidson sarcastically, “It’s going to be the easiest deal you’ve ever done in your life. All you have to do is paper it and talk to that asshole.”

Davidson developed pseudonyms to keep everything confidential. Stormy Daniels was “Peggy Peterson,” and Donald Trump was “David Dennison,” a name Davidson borrowed from a fellow player on his high school hockey team who, when he heard about it, was not amused.  The text chains are peppered with “PP” and “DD.”

Cohen missed an October 14 deadline for payment and kept making excuses for why he hadn’t paid the $130,000 — he didn’t have the wiring instructions (which Davidson sent three times), the office was closed on Yom Kippur, the computer system was “all fucked up.”

Cohen “created this drama and this situation … He was highly excitable, sort of a ‘pants on fire’ kind of guy,” Davidson said. “He had a lot of things going on. Frequently I would be on the phone with him, he would take another call, he would be talking out of two ears.”

Davidson told Cohen at one point: “I don’t really believe a word that you are saying.”

These attacks on Cohen were all fine with the prosecution, which doesn’t want the jury surprised when Cohen testifies. The important thing is not whether jurors like or trust Cohen when he takes the stand but whether they believe him.

My guess is they will, in large part because of the devastating narrative unfolding across Pecker and Davidson’s testimony. “To me, it was a situation we run into all the time... someone who didn’t have the purse strings,” Davidson said, teeing up Trump’s involvement. “Michael Cohen didn’t actually have the authority to spend the money.”

When Cohen ran out of excuses, and it became clear Trump wouldn’t pony up directly; Cohen told Davidson, “Goddammit, I’ll just do it myself.”

When he did — and when he got Trump to reimburse him — the crimes at the heart of this case were set in motion.

Next: Cross-examination of Davidson.