V arious media reports indicate that porn star Stormy Daniels is going to take the witness stand in the Trump trial in lower Manhattan, perhaps as soon as this morning.
It is important to bear in mind that Daniels, who claims to have had a consensual sexual interaction with Trump in 2006, is not an essential witness in the case. The 34 inflated felony charges in the indictment allege that Trump fraudulently caused the records of his business to be falsified between February and December 2017. Daniels has no competent testimony to give about any of that: She was paid by Michael Cohen in late October 2016, and had no participation in either Trump’s reimbursement of Cohen or in how it was booked by the Trump Organization.
Even if we expand the lens out to the fabricated crime that Bragg did not charge in the indictment but that Judge Juan Merchan is permitting him to “prove” to the jury — conspiracy to steal the 2016 election by suppressing politically damaging information (I put “prove” in sneer quotes because there is no such crime in New York law) — Daniels is not a necessary witness.
There is no doubt that she claimed to have had a tryst with Trump in 2006; that discussions about paying her took place among Trump, Cohen, and David Pecker; that Cohen negotiated a nondisclosure agreement (NDA) with her lawyer, Keith Davidson; that Cohen and, inferentially, Trump were hoping to string her along and not pay her; that the leak of the damaging Access Hollywood tape in early October 2016, which nearly derailed Trump’s presidential campaign, gave her more leverage; and that as she intensified the threat to go public, Cohen paid her $130,000, using funds from a bank line of credit, which he sluiced through an LLC he’d set up for the purpose. The money was unquestionably paid pursuant to a pseudonym-laden NDA, in which Trump was identified as “David Dennison” and Stormy as “Peggy Peterson” — an NDA that Trump did not sign at all and that Stormy signed by her real name, Stephanie Clifford.
This is all incontestable from the testimony of David Pecker and Keith Davidson, which has already occurred, the coming testimony of Cohen, the documents and recordings, and Trump’s public statements (which acknowledged Daniels’s claim of an affair and the NDA). And while it’s hard for any of us who have followed Trump over the years to believe he would fork up $130K to silence a woman alleging a fling if the allegation were untrue, the truth or falsity of the claim is irrelevant to the case — Trump is not charged with having extramarital sex.
The NDA and the payment happened, the reimbursement and booking of it happened, the campaign was undoubtedly an incentive for Stormy to turn up the pressure for payment and Trump/Cohen to accede to it, and Trump’s motive to shield himself and his family from embarrassment was real regardless of whether the sexual liaison occurred.
Nevertheless, it looks like we are going to get a day or three of Stormy this week. In this unabashedly politicized prosecution, bear in mind that she is not being called to testify because she is a necessary witness. For Trump, undoubtedly, she is an embarrassing witness.