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Mistrial Bait – Stormy Daniels Testifies Again Thursday

The big question that no one is asking.

Adult film actress turned TV host Stormy Daniels will take the stand today, May 9, to once again testify against former President Donald Trump. It’s her second day on the stand as the star witness for Manhattan District Attorney Alvin Bragg’s case against Mr. Trump. Bragg adopted a novel legal theory and prosecuted the former president for improperly misclassifying a payment to Ms. Daniels. The actress’s first day on the stand was a series of hints and allegations that dropped like bolts from the blue.

But what is the legal purpose of bringing forward a witness who does not know about the subsequent paperwork filings? And is her appearance a symptom of a greater malaise in the case against Donald Trump? We spoke with Liberty Nation Legal Affairs Editor Scott D. Cosenza, Esq., to find out just what games are being played in the most high-profile case of the year.

The Stormy Daniels Surprise

Mark Angelides: Scott, let’s start with the question everyone seems to ignore. Why is Stormy Daniels even testifying? What possible knowledge could she have of how her “hush money” payment – which no one denies she was paid – was processed and recorded?

Scott D. Cosenza: There is no dispute that they (Trump and Daniels) entered a confidentiality agreement. Typical big-box reporting notwithstanding, the so-called “hush-money” agreement broke no laws and is not disputed. I’m reminded of the breathless stories about Kyle Rittenhouse crossing state lines as if that were illegal. Why bring Daniels to court, indeed? It depends on the goal.

Mark: Ms. Daniels’ testimony was inflammatory, to say the least, dropping hints about Trump drugging her. These accusations have never been made before; was this even admissible?

Scott: Well, it wasn’t a direct accusation. Still, it’s a textbook case of testimony that would generally be regarded as inadmissible as prejudicial. Because cameras and audio recordings are not allowed in the courtroom, we are relying on press members present who quoted her saying she “felt drugged.” Later, she said she “blacked out” after sex with Trump and “was staring at the ceiling and didn’t know how I got there.” The clear implication is that Mr. Trump somehow acted upon Daniels without consent. Reports say judge Merchan allowed the testimony.

Mark: Wasn’t Harvey Weinstein’s conviction just overturned for this exact thing?

Scott: Weinstein was granted a new trial because several women were allowed to testify that he sexually assaulted them, even though he was never charged with those crimes. So, the testimony here is not directly analogous – but that doesn’t mean there isn’t a lesson for Merchan from the Weinstein ruling. Alan Dershowitz, the famed lawyer and law professor, called what happened in Merchan’s courtroom a “clear reversible error” based on the opinion in the Weinstein case. He said Bragg followed a roadmap of what you cannot do in court. 

Damage Done?

Mark: Is there any recourse for Donald Trump to fight back against the allegations? Or is the damage already done?

Scott: The political damage may be difficult or impossible to fight against. On the legal side, our system generally provides appeals only after a conviction.

Mark: This seems to me – as a layman – to be a highly unorthodox way of prosecuting a case. Rather than bringing in witnesses and evidence to support the crimes you are charging, instead, bring in witnesses to assassinate the defendant’s character. Or have I misdiagnosed Mr. Bragg’s intent?

Scott: Mr. Bragg’s novel charges and the prosecutorial pathways he’s pursuing seem less like a search for truth or an attempt to deliver justice with each passing day. Instead, they appear more to be a political attack against Trump. Seen through this lens, bringing Daniels to court to talk about her alleged liaison with Donald Trump is a no-brainer. It puts an unflattering story about Donald Trump on the front page of the nation’s papers.

Mark: What can we expect from Ms. Daniels as her testimony continues?

Scott: Today, she will be facing Donald Trump’s lawyers in a cross-examination. They will do their best to impeach her testimony on direct examination, including by attacking her veracity and character. After her previous day of testimony, when the defense team requested a mistrial, although he denied it, Judge Mechan conceded that “there were some things that should have been left unsaid.” Perhaps today, her testimony will convince the judge that he should grant the mistrial motion after all.

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