Hindsight is 2020, but as Judge Juan Merchan explained to Donald Trump’s defense team on Thursday: If you didn’t want a problematic alleged sexual encounter with your client openly discussed in a Manhattan courtroom, you shouldn’t have brought it up on the first day of trial by denying any such interaction ever took place. And when Stormy Daniels began testifying, recounting in excruciating detail her claimed hotel-room rendezvous with the former president, it was the defense counsel’s job to stand up and say what they believed was out of bounds, Merchan said.
“For the life of me,” Merchan said at the end of Thursday’s proceedings, per ABC News, “I don’t know why Ms. [Susan] Necheles didn’t object.”
Those failures led the judge in Trump’s criminal hush money case from granting a defense motion for a mistrial. But observers of the cross examination that took place earlier in the day can understand why the former president’s lawyers would try.
As former U.S. Attorney Joyce Vance commented, the defense interrogation of Daniels was a “master class in how not to do” a cross examination.
For one, Daniels, an adult film star whose $130,000 hush payment is at the heart of the case, could not possibly know whether Trump engaged in a conspiracy to falsify business records in order to evade campaign finance laws.
But Necheles didn’t get around to pointing that out until nearly the end of her more than two hours of cross examination. Instead, she leaned into what analysts referred to as an almost archaic, pre-#MeToo “nutty and slutty” attack, suggesting that Daniels was a promiscuous and prolific fabulist.
“You have a lot of experience making phony stories about sex,” Necheles said at one point. At another, she was quizzing Daniels on her claim that Trump never provided her dinner at their alleged 2006 encounter.
What Necheles should have done, in the view of her critics, is just stick to what Daniels couldn’t know – the alleged conspiracy, after the claimed incident, that prosecutors claim amounts to nearly three dozen felonies – instead of re-litigating an evening of bad sex that the defendant denies ever happened.
But the defendant in this case is Donald Trump or, as conservative attorney George Conway phrased it on CNN: Necheles’ client “is a narcissistic sociopath who is obsessed with proving the lie that he didn’t have anything to do with Stormy Daniels. And so they went off on this whole tangent.”
It was, Conway concluded, “a complete disaster and a fiasco.”
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MSNBC legal analyst Lisa Rubin said Daniels performed better under the defense team’s constant stream of attack – she quickly rebutted the accusation she’s a grifter for selling merchandise by pointing the finger back at a man selling his own Bible – than she did on her first day of testimony, when even the judge thought she went too far in describing her alleged encounter with Trump.
"Stormy Daniels is the rare witness who's better on cross-examination than she is on direct," Rubin commented. "She really held her ground.”
That has much to do with Daniels’ ability to respond under pressure, but the defense enabled it, choosing, for example, to interrogate her about her claimed reaction to seeing Trump in his underwear, which she had previously described as a shock and surprise.
"The most that Susan Necheles did was say that it was incredulous to her that Stormy Daniels, having acted in 150 to 200 pornography movies, would be scared or surprised to come out of the bathroom and find Donald Trump on the bed for her," Rubin said. "Daniels had a nice retort to that, which is to say, 'Look, if it had been my husband, I see my husband naked all the time, but to open that bathroom door and to find Donald Trump lying on the bed for me at 60 years old, more than twice my age, and much larger than me, yeah, that was surprising.’”
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That exchange was also singled out as damaging by CNN legal analyst Norm Eisen.
“Instead of the question undermining Daniels, she got the better of the exchange,” Eisen wrote in an analysis of Thursday’s hearing. “It also reinforced Daniels’ Tuesday testimony that she felt a power imbalance with Trump at the time of the encounter. Instead of improving Trump’s situation, I thought the exchange made it worse.”
Jim Trusty, an attorney who previously represented Trump in his classified documents case, said he believed the cross examination of Daniels was a failure for the defense – and a product of a “shift in strategy” sought by a “fairly opinionated” client. “It kind of spiraled into a different case for a few hours with this cross examination,” he told CNN. “I don’t think that was particularly helpful.”
Trusty said that even if the defense thought it could score points going after Daniels, it was besides the point: save the venom for Michael Cohen, he argued, who is actually in a position to validate the prosecution’s charges – which relate to business records, not sex.
“They spent too much time dignifying her as a witness for a case that’s about paper entries,” Trusty said.
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