Misdeeds, Mistrials and Mistakes

A strategy to allow Daniels freer rein to testify could set up an appeal but carries risks for the defense.

Artist rendering of Stormy Daniels on the stand, by Elizabeth Williams / AP

You may have heard that Trump’s lawyers have now moved twice for a mistrial in the Manhattan criminal case against him. There was never any strong chance that Judge Merchan would go for this, so what are Trump’s lawyers up to?

The short answer is, they’re thinking ahead to the inevitable appeal, and they’re trying to get in as many bites as they can at a reversal from a higher court. Given Trump’s age and the upcoming election, anything that can put off actual prison time, if and when a conviction gets handed down, would be a win in defense counsel’s eyes. 

And certainly a reversal on the question of a mistrial, necessitating a do-over with a whole new jury, would give Trump almost as much of a victory as a hung jury today would. In fact, if a higher court ordered a new trial but Trump won the election, he might never even face that new jury. It’s very difficult to prosecute a sitting president, and this Supreme Court would likely tie up that question for years.

But are there any grounds for a mistrial in this case so far? And will Judge Merchan’s rulings hold up under later scrutiny? He has laid the blame for Daniels’s testimony going a bit off the rails mostly on defense counsel. But is that a fair assessment? And why would experienced defense counsel allow Daniels to malign their client in this way, often without objection? In today’s piece, I assess what happened and what might really be going on.

Misdeeds

A mistrial can occur when testimony is so prejudicial that the jury is hopelessly tainted against a defendant. And that’s what Trump’s lawyers assert happened when Stormy Daniels testified.

Daniels described her sexual encounter with Trump at length and in great detail, both during direct examination by the state and cross-examination by defense attorney Susan Necheles. On the stand, Daniels painted a picture of a predatory man who lied to her about his intentions, surprised her by undressing himself and lying on the bed while she was using his bathroom, then got on top of her quickly and didn’t bother to use a condom.

As Ron Filipkowski noted, the defense claims that Daniels “gave the jury the impression she did not consent to sex, and the jury could convict Trump because of their anger about that even though rape isn’t part of the charges.” But this isn’t likely to fly, he argues, because “Stormy said Trump never used physical force” and “she just felt intimidated by the whole scene because of Trump’s size and his bodyguard was outside the door.” 

Still, even though this didn’t rise to the level of a non-consensual encounter, there was an ickiness to it that defense counsel claims tainted the jury. And indeed, Merchan noted earlier that he wished prosecutors hadn’t asked Daniels certain questions. After all, this is a case about falsifying business records to cover up election interference, not a case about whether or not Trump actually had sex with a porn star.

Mistrials

In each of the two instances where defense counsel moved for a mistrial, Judge Merchan wasn’t having it. He issued a stern rebuke to Trump’s team, reminding them that they were the ones who put Daniels’s credibility at issue by claiming in their opening statement that the encounter never happened. 

The judge also chided Trump’s lawyers for not raising objections to Daniels’s testimony when they could have. He reminded them that nearly every time they did, the judge sustained the objection. As the Washington Post reported,

[I]n a biting review of Necheles’s performance as Trump’s defense lawyer, Merchan cited one incident as a key example: Daniels’s allegation Tuesday that Trump did not use a condom when they had sex. Trump and his team have previously denied he had sex with Daniels.

“Why on earth she wouldn’t object to the mention of a condom, I don’t understand,” Merchan said.

Judge Merchan was careful to build a record of his decision, knowing it would be front and center on appeal in the event of a guilty verdict. Per reporter Katie Phang, who attended the hearing in person, Merchan made the following statements part of that record:

On his careful review of his prior decisions:

MERCHAN: Following your motion for a mistrial on Tuesday, I went back to chambers, I pulled out my decisions on both motions for limine, the omnibus decision, and the transcript from Tuesday. I went back to make sure that there were guidelines and no inconsistencies, and after having done so, I came away satisfied.

On how it was defense counsel that put the question of whether there was a sexual encounter at issue in the case, and why Daniels was permitted to provide specifics about it:

MERCHAN: Going back to opening statements, Mr. Blanche in your opening statement, you denied there was ever a sexual encounter between your defendant and Stormy Daniels.

Your denial puts the jury in a position of having to choose who they believe: Donald Trump, who denies that there was an encounter, or Stormy Daniels, who claims that there was.

The more specificity Daniels provides the better than can weigh her credibility.

On how defense counsel bears some blame for some statements making their way into the record without objection:

MERCHAN: There were many times, not once or twice, but many times that Ms. Necheles could have objected, but didn’t.

"Trailer park." I felt that was not necessary but there was no objection but I had it struck from the record, and virtually every one of Necheles‘s objections was sustained.

With this backdrop and context, it would be surprising if a higher court reversed Merchan on the question of a mistrial—though it must be in the back of everyone’s mind that Harvey Weinstein recently got his conviction for rape reversed because of testimony from other witnesses on matters not in the indictment that were highly prejudicial, at least in the minds of the state high court justices.

Mistake? 

All this raises an important further question. Why exactly did seasoned defense lawyers allow Daniels to go on like that instead of objecting? 

My hot take on this is that I don’t think it was incompetence. I think it was on purpose.

Assume for the moment your worst nightmare has come true and you are defense counsel for the world’s most difficult client. Donald Trump is lying to your face, saying that the sexual tryst with Stormy Daniels never happened, and that it was all a shakedown for money. He insists, against your advice, to challenge her account in court. No giving an inch.

As defense counsel, what do you do with this? I would probably do pretty much what Necheles did. I would try to rile up Daniels and get her to reveal sordid details and say nasty things about Trump, not just to show she was out to get him, but to turn the trial into such a circus that an appellate court later throws up its hands and agrees it should have been ruled a mistrial.

Judge Merchan appears to be on to this game. If Daniels’s testimony was in fact prejudicial to Trump, it’s largely because his own counsel opened the door to the testimony and then let that testimony stand unchallenged. This of course still allows for a messy record on appeal, where staid judges might recoil at how the case “somehow” went off on a wild tangent about a factual question that isn’t even an element of the charged crimes.

Daniels’s testimony also allows Trump (or in this case, his surrogates, who aren’t under a gag order) to argue to the MAGA base just how sordid and unfair this case is. “Here was this money-grubbing, adult film star making wild accusations from 18 years ago against their beloved president. She’s clearly there to target him with her lies!”

But the defense opening the door for Daniels’s testimony also carries a huge risk. By coming after Daniels so forcefully over a question no one really doubts, the defense risks turning off the jury and losing further credibility. Daniels came off as abrasive, but not a liar. If the point was to prove that the encounter never happened, the defense failed pretty badly.

Still, the overall strategy might wind up helping on appeal, and it may have already shaped the direction of the case. The prosecution decided not to call another witness, Karen McDougal, who also could testify as to Trump’s bad behavior around women. Perhaps the DA’s office could sense that this might further distract from the heart of the case and give even more ammunition to Trump on appeal. Or perhaps they realize, as they should, that the case is already strong enough to win a conviction.

Following Judge Merchan’s rulings denying the motions for a mistrial, the case will continue. Trump is predictably out publicly demanding a mistrial, including in social media posts. We have yet to hear from Michael Cohen, so expect more fireworks. But this won’t be the last we hear about Stormy Daniels. The defense will do its best to sum up her inconsistencies and biases in its closing argument, and it will almost certainly appeal from any verdict on the ground that her testimony should have resulted in a mistrial. 

Let’s hope the appellate courts see through the defense ruse and understand that Trump and his lawyers pulled a Steve Bannon and intentionally sought to “flood the zone with shit” about Daniels precisely to cause chaos and grounds for a mistrial. It was a risky move, and quite possibly a big mistake before this jury, but it’s a gamble the defense team was willing to make. Indeed, they may have had no other choice, given that their client would never concede that the encounter even happened in the first place.