The judge overseeing Donald Trump’s criminal case in Manhattan castigated the former president’s lawyers on Thursday and denied their second request for a mistrial this week.
Judge Juan Merchan essentially said that Trump’s lawyers were to blame for allowing Stormy Daniels, an adult film star, to describe lurid details about her alleged sexual encounter with Trump in 2006, including testimony that Daniels nearly blacked out and that Trump did not wear a condom.
Trump’s attorneys have now twice used the testimony to ask for a mistrial, saying it biases the jury and is irrelevant to whether Trump committed the felony of falsifying business records. “It’s a dog whistle for rape,” Trump attorney Todd Blanche said on Thursday.
But Merchan said that Blanche and Trump’s legal team had invited the salacious details into the case. In his opening statement, Blanche had said the sexual affair never happened, essentially asking the jury to believe either Trump or Daniels, Merchan said. The details Daniels could offer, he said, spoke to the credibility.
“Your denial puts the jury in a position of having to choose who they believe: Donald Trump, who denies there was an encounter, or Stormy Daniels, who says that there was,” Merchan said. “These details add a sense of credibility if the jury chooses to believe them.”
Merchan also needled Trump attorney Susan Necheles for not objecting when Daniels was asked whether Trump used a condom.
“Why on earth she wouldn’t object to the mention of a condom, I don’t understand,” he said.
Merchan also declined to modify a gag order that prohibits Trump from attacking witnesses, including Daniels, and jurors. Blanche said it was unfair that Trump wasn’t going to be given a chance to respond to attacks. “As we’ve said repeatedly, he needs an opportunity to respond to the American people,” Blanche said.
But Merchan denied that request too, saying that even if he lifted the gag order with respect to Daniels, who is now done testifying, he was concerned about the message it would send to other witnesses.
“Other witnesses, including not only Michael Cohen, other witnesses will see your client doing whatever it is he intends to do,” he said. “The reason why the gag order is in place to begin with is precisely because of the nature of these attacks. The nature, the vitriol…your client’s track record speaks for itself here.”
Trump fumed after courts, telling reporters the judge was “corrupt”.
Merchan’s lengthy denial came at the end of a day in which Trump’s lawyers spent hours seeking to undermine Daniels’ credibility on Thursday, pressing on her motivations for agreeing to a hush-money payment as the adult film star continued critical testimony in the former president’s criminal trial.
Susan Necheles, a lawyer for Trump, asked Daniels to explain on Thursday why she didn’t just go public with her story in the waning days of the 2016 campaign and instead sought to get paid for her story. She also suggested Daniels wanted to hurt Trump because Trump opposed gay marriage and abortion.
In rapid-fire questions, Necheles seemed to be trying to seed the idea that Daniels, dressed in a green blouse and black sweater, was more interested in getting a payout than telling the truth.
“You wanted money, right?” Necheles said.
Daniels, who insisted she wanted to do a press conference in the waning days of the 2016 campaign, said “I wanted the truth to come out,” adding that she wanted a paper trail. “I never asked for money from anyone in particular, I asked for money to tell my story.”
Necheles laid out all the ways Daniels had profited from her story – including a book deal, documentary and merchandise celebrating Trump’s indictment.
“A large part of your livelihood for a number of years now has been making money of the story that you had sex with President Trump and you helped him get indicted,” Necheles said.
Daniels insisted she wasn’t profiting but simply “doing her job” to fund significant legal bills.
Necheles went on to try to poke holes in Daniels’s story about her encounter, highlighting instances in which she said Daniels’s recollection had changed over the years.
For example, Daniels testified on Tuesday that she never ate dinner with Trump during their encounter in his Lake Tahoe hotel room, but during a 2011 interview with InTouch magazine, she said: “We ended up having dinner in the room. I cannot remember what we ordered.” She also said that it was Keith Schiller, Trump’s bodyguard, who had invited her to have dinner with Trump, but in the 2011 interview she suggested it was Trump himself. She had also given slightly different descriptions in the past of how Trump greeted her when she entered his hotel suite.
Daniels, who spoke quickly and appeared unfazed by Necheles’s questions, refused to concede any inconsistencies. “You’re trying to make it say that it changed but it hasn’t changed,” she said.
Necheles also suggested that Daniels could make up a good story about having sex with Trump because of her experience in the adult entertainment industry. “You have a lot of experience in making phony stories about sex appear to be real.”
“If that story was untrue I would have written it to be a lot better,” Daniels fired back. Necheles also forced Daniels to concede she had no direct knowledge of Trump’s involvement in the $130,000 hush-money payment, but later acknowledged she became aware of it when Trump’s lawyers conceded it in a court proceeding against her.
In one striking exchange, Necheles sought to question Daniels testimony from earlier in the week in which she said she was scared and startled when she emerged from the bathroom in Trump’s suite and found him in bed in his T-shirt and underwear. Necheles noted that Daniels had acted in hundreds of porn movies, and “according to you seeing a man sitting on a bed in T-shirt and boxer shorts was so upsetting?”
Daniels replied that it was startling to see a much older man who she didn’t know well to be in such a revealing state.
During redirect examination, prosecutor Susan Hoffinger asked Daniels bluntly if she was telling the truth or lies about Trump. “The truth.” Seeking to undercut testimony that Daniels had come out ahead because of the story, Hoffinger also asked Daniels whether the whole episode had been a net positive or net negative on her life.
“Negative,” Daniels said.
After Daniels’s testimony concluded, Trump lawyer Todd Blanche said he would ask again for a mistrial. Merchan, who denied a mistrial request yesterday, said he would hear the request at the end of testimony today.
Trump arrived in court on Thursday with the Florida senator Rick Scott among his entourage, part of a parade of supporters who have come to court to back the former president. Scott left the courtroom shortly before 11am and did not return to court for the rest of the day.
Related: ‘Do you worry about STDs?’: Stormy Daniels’s testimony on Trump affair off to lurid start
Trump is charged with 34 felony counts of falsifying business records in connection with payments his lawyer Michael Cohen made to Daniels in 2016 to prevent her from speaking publicly about their alleged affair.
The hush-money case is the first of four criminal cases to reach a jury against Trump but the other three have hit serious delays, which could perhaps prevent them from starting before November’s presidential election.
Trump’s criminal hush-money trial: what to know
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