Trump trial judge dismisses ex-president’s claim he cannot testify
As the third week of Donald Trump’s Manhattan trial neared its conclusion on Friday, the historic proceedings have not just weighed whether hush-money payments to alleged paramours involved illegality – they are also touching on the ex-president’s already tenuous relationship with reality.
Trump, whose most infamous lie remains his claim that the 2020 election was stolen, has peddled untruths outside of the courtroom; meanwhile, his defense has flirted with conspiratorial approaches to evidence in this case.
After Juan Merchan, the judge, on Thursday weighed more apparent gag order violations by Trump, the GOP presidential frontrunner told reporters: “I’m not allowed to testify. I’m under a gag order, I guess. I can’t testify.” He also claimed: “I’m not allowed to talk.”
Trump’s statements about testifying and permission to talk were both untrue, of course. Trump has a right to testify in his own defense at trial, and he can make statements related to his trial – so long as they don’t constitute commentary on witnesses and other limited prohibitions in the gag order.
Before proceedings started on Friday morning, it appeared that Merchan perceived potential problems inherent in the proliferation of such an untruth.
“I want to stress, Mr Trump, that you have an absolute right to testify at trial,” Merchan said. “The order prohibiting extra-judicial statements does not prevent you from testifying in any way.”
Trump attorney Emil Bove also flirted with the notion of mucked-up evidence, asking Douglas Daus, a digital evidence tech for the office of Alvin Bragg, the Manhattan district attorney, about the veracity of data on former Trump lawyer Michael Cohen’s phones during cross-examination on Thursday. Daus testified that once he was assigned to analyze Cohen’s phones, he brought them into his department’s Faraday room.
In very general terms, Faraday cages, which can take the form of rooms or bags or containers, among other vessels, effectively shield their contents from outside electrical fields. Keeping a cellphone in a Faraday cage could evade detection from outside the cage and, theoretically, not be subject to interference from outside fields.
Bove asked Daus about his testimony on the Faraday room. “But there’s also a Faraday bag?” he asked, to which Daus replied: “Yes.”
“So sometimes you can get the device, throw it in the bag and it’s protected from the radio signals; right?” Bove asked.
Again, Daus said: “Yes.”
Bove’s implication was clear: if Cohen’s phones weren’t immediately tucked into a Faraday bag, outside actors could have tampered with them by radio signal.
That’s not to say that the tenuous relationship with reality was limited to Team Trump. Keith Davidson, the attorney representing Stormy Daniels and Karen McDougal, on Thursday discussed sexual relationships in a way that stretched the confines of English diction.
Davidson did so while being questioned about Daniels’s written denial of a sexual relationship with Trump, in which she said: “I recently became aware that certain news outlets are alleging that I had a sexual and/or romantic affair with Donald Trump many, many, many years ago. I am stating with complete clarity that this is absolutely false.”
Prosecutor Joshua Steinglass asked Davidson whether this denial was true. “I think that this is a tactic that is oftentimes used in the cat-and-mouse interactions between publicists and attorneys and the press and that an extremely strict, extremely strict reading of this denial would technically be true,” Davidson said on Thursday, his second day on the stand.
Steinglass asked how this could be “technically true”. “Well, I think you have to go through it word by word, and it would – if you did so, I think it would technically be true with an extremely fine reading of it,” Davidson said.
“I think you would have to hone in on the definition of romantic, sexual and affair,” he continued. “I don’t think that anyone had ever alleged that any interaction between she and Mr Trump was romantic.”
Fact or fiction discourse aside, the proceedings featured raucous testimony from Davidson about an increasingly unhinged Cohen, and the tawdry business of celebrity sex scandals. The details came to light as Davidson was grilled on his communications with the former National Enquirer editor Dylan Howard around the 2016 election and Cohen, Trump’s then fixer.
As it grew more and more apparent on election night 2016 that Trump would become the president, Davidson texted Howard: “What have we done?”
Related: Text shows Stormy Daniels lawyer’s shock at Trump win in 2016: ‘What have we done?’
“Oh my God,” Howard replied, with Davidson walking jurors’ through the texts as they were displayed in court.
Davidson told the jury that his phrasing amounted to gallows humor. When pressed by Steinglass to explain, Davidson said he meant that “our activities may have in some way assisted the presidential campaign of Donald Trump”.
The Manhattan district attorney’s office contends that Cohen bought Daniels’s silence about an alleged sexual affair with Trump for $130,000, and coordinated the National Enquirer parent company AMI’s payoff to McDougal. They contend that Cohen did so to prevent damaging information from thwarting Trump’s chances in the election.
Trump is charged with falsifying business records for making repayments to Cohen as legal expenses on company documents. Prosecutors allege that Trump, Cohen and the former AMI publisher David Pecker hatched their catch-and-kill scheme during a summer 2015 meeting at Trump Tower.
Pecker’s testimony last week described this meeting and his agreement to serve as the Trump campaign’s eyes-and-ears for unsavory intel. Pecker instructed Howard to reach out if anything crossed his desk.
As Howard had long known Davidson, several items did in fact catch his attention. Davidson repped McDougal and Daniels; neither wanted their stories out there and both were willing to keep quiet.
While they were quiet following financial agreements – with Cohen himself footing the bill for Daniels initially – the Trump loyalist grew disillusioned. Davidson said they kept talking after the election, and recalled one late 2016 phone call in which Cohen seemed to be spiraling.
“Jesus Christ, can you fucking believe I’m not going to Washington?” Davidson recalled Cohen saying. “After everything I’ve done for that fucking guy, I can’t believe I’m not going to Washington.
“I’ve saved that guy’s ass so many times, you don’t even know,” Davidson further remembered of Cohen’s call. “He said I never even got paid. That fucking guy is not even paying me the $130,000 back.”
On cross, Bove tried using Davidson’s account of Cohen to create cracks in the expected star witness’s testimony. Cohen was so upset over not landing a gig in the Trump administration, Davidson said, “I thought he was gonna kill himself.”
He also tried to slime Davidson by placing him at the center of scandal with celebrities of varying import, noting that his other work had involved legal issues relating to Charlie Sheen, Hulk Hogan and a Playboy model turned born-again Christian – who had allegedly associated with white nationalists.
