Did Donald Trump forge business documents to gain an advantage in the 2016 presidential election? That's what it should actually be about. But now the trial revolves primarily around sex, condoms and credibility – with hardly foreseeable consequences.
When Susan Necheles asks her question, she already knows what Stormy Daniels will answer. “You made it all up, didn’t you,” asks Donald Trump’s defender. She speaks loudly, quickly and firmly. “No,” Daniels counters in an angry voice. Of course she would contradict this assumption, whatever else. But in American criminal proceedings, in which a jury ultimately decides, it is not always about what comes closest to the truth. It's about which side appears more credible than the other – or is least mired in contradictions.
Did Daniels just make this all up? At least the idea is now in the room. Susan Necheles and her colleagues want the jury not to believe the witness. One or one person with doubts would be a success for the Trump team, after all, the twelve jurors have to decide unanimously in the end.
On Tuesday, the former porn actress testified that she had sex with the then-entrepreneur and reality TV star in 2006. Daniels shared so many details that tabloids around the world couldn't believe her luck. Trump was lounging on a bed in his boxer shorts. He assured Daniels that he would no longer sleep in the same room as his wife Melania. That the porn actress would remind him of his daughter Ivanka. And that he didn't use a condom during sexual intercourse.
Sex with Trump isn't relevant, is it?
If the trial had been televised, the ratings would have been bombastic. The point is: This criminal case is about the allegation that Trump hid an indirect hush money payment to Daniels in the company's balance sheets in order to gain an advantage in the 2016 presidential election. The question of whether the two had sex is not relevant to the case.
Or does it?
On Thursday, when Stormy Daniels testified in court for the second time, that very question was at stake. The defense was trying to accomplish two things. She wanted to portray Daniels as a woman who constantly lies and wants to make money at Trump's expense.
Susan Necheles tried to use Daniel's career as a porn actress against her. “You have a lot of experience making fake stories about sex seem true,” the lawyer said.
“Wow,” Daniels replied with a laugh. “I wouldn't put it that way. The sex in the movies is very real. Just like what happened to me in this room.” This refers to the hotel suite in which sex is said to have taken place in 2006.
Necheles further asked, “Do you have much experience memorizing these fictional stories?” Daniels replied that she had “a lot of experience in memorizing dialogue, but not in how to have sex – I'm pretty sure we all know how to do that.” Even Todd Blanche, Donald Trump's chief lawyer, couldn't help but laugh.
The defense wants to collapse the proceedings
The showdown between the prosecution and defense occurred late on Thursday afternoon, when the jury had already left the room. This is always the moment when fundamental procedural questions come into play. Todd Blanche requested that the judge declare the trial flawed. A so-called “mistrial” would result in the jury being dismissed and the trial having to start all over again. That would probably take months and would hardly be realistic before the election.
Blanche was particularly concerned with the aspect of whether the sexual intercourse was consensual. Daniels said she was not threatened by Trump. But there was a “power imbalance”. “It was bigger and blocked the way,” Daniels said. From Blanche's point of view, this was an “intimation of rape” and therefore prejudicial. This makes a fair trial impossible for Trump.
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Judge Juan Merchan rejected the claim and instead blamed Susan Necheles, who led Daniels' cross-examination. The lawyer should have objected when a prosecutor asked about Trump not using a condom. “I wish these questions hadn't been asked,” the judge said. He “doesn’t know for the life of me why Ms. Necheles didn’t raise an objection.”
The public prosecutor's office, however, felt compelled to defend its questions from Tuesday. Daniels testified that Trump asked her in 2006 whether she was regularly tested for sexually transmitted diseases. Against this background, the issue with the condom is relevant. Both pieces of information together would prove Stormy Daniels' credibility. The judge didn't seem really convinced.
In the end, however, Juan Merchan will not decide on Donald Trump's guilt or innocence. That is the task of the seven men and five women who make up the jury. They closely followed the approximately seven hours in which Stormy Daniels was questioned over two days. Heads went back and forth, especially in the exchanges between the defense and the witness. Everyone was wide awake – but what do the twelve think? That is the big unknown in this case.
