Why Stormy Matters
The seedy details of Trump's encounter are more relevant than they might seem
On Thursday, Donald Trump’s lawyers made yet another bootless motion for a mistrial in the former president’s ongoing trial for falsifying business records, arguing that pornographic actress Stormy Daniels’ testimony had been so prejudicial as to preclude the possibility of a fair trial.
Judge Juan Merchan quickly dispensed with the motion on largely procedural grounds: Trump’s lawyer had failed to object at many key points during the testimony, and could not now use their own inaction as an excuse to restart the trial. Yet at first blush, and leaving aside the Trump team’s lethargy, one might well think the underlying argument was not wholly without merit. This is, after all, a case about falsifying business records, which Daniels had little knowledge of. Strictly speaking, it doesn’t even really matter legally whether the sexual encounter Daniels described actually happened. Don’t all the sordid details, then, serve only to cast Trump in an unflattering light—potentially biasing the jury against him—without providing anything of real relevance to the charges against him?
Superficially reasonable as it might sound, I think that’s wrong: Some of the details of the encounter that emerged in Daniels’ testimony do bear on the heart of the case the prosecution needs to make.
Let’s recall the basics. Trump is charged with falsifying business records because in October of 2016, Trump’s then-fixer Michael Cohen paid Daniels $130,000 to keep schtum about having had sex with Trump a decade earlier; Trump then reimbursed Cohen, falsely recording the payment as “legal expenses,” and staggering the payment to make it seem like a lawyer’s retainer fee rather than a reimbursement. This much, Cohen’s credibility issues notwithstanding, is sufficiently documented that it shouldn’t be difficult to prove. To elevate that charge from a misdemeanor for a felony, however, prosecutors need to establish that the falsification was done with the intention of concealing a different crime—violating federal and state campaign finance laws with a large undeclared campaign expenditure.
In other words, it matters to the case not just that Trump paid Daniels hush money by proxy and fudged the books to conceal this fact—it matters why he did it. The prosecution needs to show that this was an expenditure aimed primarily at protecting Trump’s presidential campaign, rather than, say, generally protecting his reputation, or his relationship with his wife Melania. And on this front those seedy specifics seem potentially quite important.
First, there’s the question of the alternative motivation: Is it plausible that Trump was first and foremost concerned, not with his imperiled presidential campaign, but with sparing his wife’s feelings? On Daniels’ account, at least, this does not seem to have been a particularly worry for Trump the private citizen. “Don’t worry about that,” Trump allegedly responded when Daniels expressed concern about Melania, “We don’t even sleep in the same room.” Nor, according to Daniels, did Trump then or in any of their subsequent communications urge upon her the importance of keeping the liaison secret.
Second, there’s the all-important context for the payment: the October 2016 publication of the Access Hollywood tape, which provoked condemnation from fellow Republicans, rocked the campaign, and reportedly even caused Mike Pence to consider withdrawing from the ticket. There was plenty on the tape that might be fatal to the career of an ordinary politician. Just a few months after his marriage to Melania, he recounts a his failed attempt to (in Trump’s words) fuck a married woman. Yet that seemed to almost fall by the wayside in the subsequent coverage. Trump was, after all, one of the world’s most notorious playboy philanderers: He’d been having an affair with his second wife, Marla Maples, while still married to his first wife, Ivana Trump, and then begun dating Melania while separated from but technically still married to Maples. Nobody could pretend to be shocked.
No, what made the tape truly damaging in the shadow of the Me Too movement was Trump’s vulgar boasting about how his wealth and celebrity allowed him to grope and kiss women without their consent—even “grab them by the pussy”—because “when you’re a star they let you do it.” His unseemly tomcatting was, for better or worse, already priced in to the Trump brand: Shamelessly abusing his star power to foist himself on reluctant women too cowed to object was what really sparked outrage.
That’s why the ugly specifics are relevant here. Daniels’ story isn’t of an actress happily jumping in bed with a celebrity tycoon. It’s of a woman who showed up for what she believed would be an evening of dinner and conversation bullied into sex by the host of a popular reality show, who dangled the prospect of a role on the show in exchange for sex. “I thought we were getting somewhere, we were talking, and I thought you were serious about what you wanted,” Daniels says Trump told her, “If you ever want to get out of that trailer park…" Judge Merchan struck that last part, but I’d argue it’s relevant. It shows that, though Daniels made clear the sex that ensued was consensual in the strict sense, it was not a matter of mutual desire, but power and compliance.
Against the backdrop of the Access Hollywood tape, it takes no imagination at all to see how devastating this story would have been. It would have confirmed that Trump’s lewd boasts were not just “locker room talk,” as he kept desperately insisting, but tracked his actions: That he was a man who leveraged his wealth and celebrity to get sex from women who feared refusing him would be bad for their careers.
It’s anyone’s guess whether Melania would find such a story any more or less repulsive than a more enthusiastically consenting dalliance. But Trump certainly must have feared that it would matter to the public.
Tempting as it might be to view Daniels’ testimony as a sensationalist sideshow, it actually provided important context with direct bearing on the legal charges Trump faces. It makes it clear why Trump, who for so long and through so many marriages reveled in his playboy image, would in October of 2016 have suddenly viewed this particular story as a lethal political liability.