Donald Trump's hush money trial resumed Thursday in a New York City courtroom with a former lawyer for adult film star Stormy Daniels recounting the deal struck days before the 2016 election to suppress her claims that she had a sexual encounter with Donald Trump — and the role he suggested the deal may have played in his campaign victory.
"What have we done?" attorney Keith Davidson said in a text sent on election night to the National Enquirer executive who'd helped him mediate the deal. "Oh my god," responded the exec, Dylan Howard, who was the Enquirer's editor-in-chief at the time. He described the text as "gallows humor" about their understanding that "our activities may have in some way assisted the presidential campaign of Donald Trump.”
On cross-examination in court in Manhattan, Trump's attorney Emil Bove tried to undermine Davidson's credibility by asking him about other salacious tabloid stories he had been involved with, including those about people who peddled sex tapes featuring wrestler Hulk Hogan and influencer Tila Tequila, and a person who allegedly leaked information about actor Lindsay Lohan's stint in rehab. Davidson was evasive with his answers, saying he couldn't remember details about specific cases. "I had over 1,500 clients in my career," he said.
He acknowledged that he was investigated for allegations of extortion in relation to the Hogan tape in 2012. "That is true," he told Bove, while denying any wrongdoing.
Davidson had represented Daniels and Karen McDougal, who both claim to have had affairs with Trump in 2006 and were paid to keep quiet about the claims in 2016. Trump has denied their claims.
The National Enquirer’s parent company paid McDougal, a former Playboy model, $150,000 as part of what prosecutors described as a “catch and kill” scheme to suppress negative stories and benefit Trump’s presidential campaign.
Then-Trump attorney Michael Cohen then paid Daniels $130,000 to keep quiet in an agreement that was fully executed on Oct. 31 — eight days before Election Day.
On Nov. 4, Davidson said, he heard from an “upset” Cohen after The Wall Street Journal ran a story about the deal to suppress McDougal’s story. Cohen said his “boss” — Trump — “was very upset” and “threatened to sue Karen McDougal.”
Davison said he next heard from Cohen that December, while he was holiday shopping in a department store that had "Alice in Wonderland"-themed decorations. He said Cohen was complaining that Trump wasn't taking him to the White House. "I’ve saved that guy’s ass so many times you don’t even know,” he quoted Cohen as telling him. Cohen then complained that Trump hadn't repaid him the $130,000 he spent on Daniels' payment, Davidson said.
On cross-examination, he said Cohen sounded so disheartened in that conversation that "I thought he was going to kill himself."
Trump eventually did reimburse Cohen in payments that prosecutors say were falsely recorded as legal payments. Trump is charged with 34 counts of falsifying business records, to which he has pleaded not guilty.
Davidson said he heard from Cohen again in January 2018, when the Journal was working on a story about the hush money payment to Daniels. He said he drafted a statement for her to issue, in which she denied having had a "sexual and/or romantic affair with Donald Trump many, many years ago."
Davidson maintained the statement was technically accurate because “I don’t think that anyone had ever alleged that any interaction between she and Mr. Trump was romantic.”
Later in the afternoon, prosecutors played a recording of a phone conversation that Davidson said Cohen had "surreptitiously" recorded. On the tape, Cohen tells Davidson that Trump, whom he doesn't name, had complained about the Daniels settlement.
In the recording, Cohen said, "I can't even tell you how many times he said to me, you know, 'I hate the fact that we did it,'" and he said, "My comment to him was 'but every person you spoke to said it was the right thing to do.'" Davidson said he understood that "he" referred to Trump and that "we did it" referred to the payment to Daniels.
Davidson's testimony was followed by Douglas Daus, a forensic analyst for the Manhattan district attorney's office. He described copying information from Cohen's phones, including text messages and pictures. He said Cohen had over 39,000 contacts on his phone, which was "unusual."
Prosecutors used Daus' testimony to play a snippet of a conversation between Trump and Cohen in September 2016 that Cohen had secretly recorded. In the discussion, which was first reported in 2018, Cohen asks about "financing" to repay Enquirer publisher David Pecker, whom Cohen refers to as "our friend David." "So what do we got to pay for this — 150?" Trump asks. He then tells Cohen to "pay with cash," and Cohen responds: "No, no, no. I got it."
The money wound up never being repaid. Pecker testified earlier in the trial that he eventually told Cohen he didn't want to be paid, citing advice he'd gotten from his company's lawyer.
Prosecutors also argued that the judge overseeing the trial should find Trump in criminal contempt — again — for violating a gag order.
The hearing focused on remarks Trump made last week to reporters in the courthouse hallway and in interviews with two news outlets. In his remarks, Trump referred to Cohen — a key figure and probable witness in the trial — as "a convicted liar." Cohen pleaded guilty in 2018 to lying to Congress about a project to build a Trump Tower in Moscow.
Trump last week also complained that the jurors are overwhelmingly Democrats. Jurors weren't asked about their party affiliations during the selection process.
Judge Juan Merchan this week held Trump in contempt for nine violations of his April 1 order prohibiting criticism of witnesses and jurors. The violations all pertained to posts on Trump’s social media account and his campaign website. Merchan fined Trump $9,000 — the maximum allowed by law — and warned that any future violations could result in jail time.
“He’s already been found to have violated the gag order nine times, and he’s done it again here,” prosecutor Chris Conroy told the judge Thursday. “His statements are corrosive to this proceeding, and to the fair administration of justice.”
However, he said, “because we prefer to minimize disruptions to this proceeding, we are not yet seeking jail.”
Trump attorney Todd Blanche defended Trump’s online commentary, saying he should be able to respond to criticism from his critics and political rivals.
"Part of the campaign takes place outside this courtroom. Part of the campaign takes place in interviews," Blanche told Merchan.
He complained that President Joe Biden made a joke at the White House correspondents' dinner over the weekend that which appeared to refer to Daniels, a likely witness, saying Trump was experiencing "stormy weather."
Merchan told him that Biden isn't bound by the gag order but that Trump was free to respond, as long as he didn't mention Daniels.
Prosecutors had also cited a comment Trump made about Pecker while he was on the stand, telling reporters he's a "nice guy," which they said was sending Pecker a message about how to testify. Blanche maintained the remark was "neutral." Merchan said he was "not terribly concerned about that one."
Trump has claimed the gag order is “unconstitutional” because he’s the presumptive Republican nominee for president and should be able to speak his mind.
“Everybody can say whatever they want, except for President Trump,” Blanche said, a frequent complaint Trump and his lawyers have made during the trial. Merchan responded that other people aren't the defendants.
Pressed about the juror remarks, Blanche said they were "absolutely positively not" a violation of the order because Trump didn't single any juror out. Merchan said, "The implication is that this is not a fair jury.”
The narrowly tailored gag order bars Trump from “making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding” and “public statements about any prospective juror or any juror.”
Merchan didn't immediately rule on the prosecutors' motion or Blanche's request to exclude Cohen from the gag order because of his repeated commentary about Trump. It's unclear when he will issue a decision.
Trump's attorneys appeared to be trying to mindful of Merchan's concerns. After the lunch break, Trump's lawyer Susan Necheles presented Merchan with what she described as a number of articles from legal commentators talking about the case and mentioning witnesses that she said Trump hoped to post about on social media. She asked the judge to review the articles to see whether they would be all right to post. Merchan said he wouldn't.
“I’m not going to be in the position of looking at posts and determining in advance whether you should or should not post," he said, adding, "When in doubt, steer clear."
During the break, Trump took to his social media platform, Truth Social, to deny reports from various news outlets, including NBC News, that he has appeared at times to be sleeping during the trial. "Contrary to the FAKE NEWS MEDIA, I don’t fall asleep during the Crooked D.A.’s Witch Hunt, especially not today. I simply close my beautiful blue eyes, sometimes, listen intensely, and take it ALL in!!!" the post said.
