Day Ten of the Trump Hush Money Trial: Louche Tabloid World Hurts Prosecution

This account of Day 10 is two days late, but I have a good excuse. On Thursday, May 2, 2024, at around 10:15 p.m., Louisa Catherine Chiusano was born at Columbia Presbyterian Hospital in New York, the daughter of Charlotte Alter and Mark Chiusano. Louisa is the younger sister of Rosie Chiusano, now nearly two and a half. I went to the hospital last evening and found Charlotte and Louisa doing great. My wife, Emily Lazar, and I are thrilled to have our second grandchild.

Day 11, when Hope Hicks took the stand, was a terrible one for Donald Trump, but you will have to read about that tomorrow.

For now, I want to offer my take on Day 10, when I grew a tad concerned. Not worried or pessimistic; I still think the odds favor conviction. But the thought occurred to me during the lacerating cross-examination of Keith Davidson that it’s quite possible one or more members of the jury will decide to hang it.

These jurors would not necessarily be secret Trumpsters. Based on voir dire and staring at them through binoculars (permitted as long as reporters don’t use them to focus on the lawyers’ open laptops), nothing raises suspicions. Not that my “hyper-observational” approach, as The New Yorker described my MO, would necessarily yield insights about their inclinations. I briefly thought that one male juror had a MAGA haircut. (“It wouldn’t be prudent,” as George H.W. Bush liked to say, to tell you which one). But then I decided that this observation was, well, a little hyper. 

The morning opened with Judge Juan Merchan’s second contempt hearing. On Thursday, the judge held Trump in contempt of court on nine of the ten counts offered by the prosecution. This time, Merchan is considering four violations of the gag order from the last two weeks, each featuring Trump trashing witnesses and the jury, a serious no-no in criminal trials.

One of my favorite recurring humiliations of Trump is that he must sit silently—without posting nasty rejoinders or changing the channel—while hatred and ridicule of him pour forth, almost always in the voice of his own attorneys. This happened during jury selection when defense lawyers convinced the judge to dismiss potential jurors who called Trump “the devil” or a “sociopath.” And we’ve now watched Trump endure two contempt hearings where his lawyers insisted that he wasn’t violating the gag order by replying to vicious attacks from Michael Cohen, the former Trump Organization attorney central to the hush money/election interference scheme.

Today, the defense did so with 500 pages of exhibits that they had sent to the judge, most consisting of Cohen going after Trump. Merchan, looking at his watch, only had the patience for a sampling. 

After Todd Blanche, the Trump lawyer on increasingly thin ice with his client, read Cohen’s tweet calling Trump “Von ShitzInPantz,” you could hear stifled giggles in the courtroom. That turned into laughter—immediately shushed by the humorless court police—when the overhead video screens displayed a PhotoShopped fat Trump as a bright orange superhero named “Super Victim.” Orange was a theme. I especially enjoyed the image of Trump in an orange jumpsuit next to Nelson Mandela. (Trump recently dubbed himself a “modern-day” version of the anti-apartheid hero) and the line: “Keep messing with me Donald and I won’t send anything to your commissary.”

Trump is especially sensitive to criticisms of his businesses, and he glared at the image on the video monitors of Barry Diller on CNBC’s Squawk Box with a chyron below: “Trump IPO is a scam.”

Blanche complained that Cohen uses his podcast, Mea Culpa, to take vicious shots at his old boss and is shopping a TV show based on the trial.

“Everyone can say what they want in this case except President Trump,” Blanche whined.

The judge was unimpressed: “They’re not defendants in this case. That’s a very significant issue you’re overlooking.”

When Blanche persisted, Merchan interrupted to remind him that Trump was the one approaching the microphones. “Nobody’s forcing him to talk to the press in the hall. The entire area has been set up so that your client, who is a candidate for president, can exercise his political speech rights,” Merchan said.

Blanche responded, “Judge, I agree with that.” 

At that point, Trump glared at his attorney. His orders are clear: Don’t give one inch.

The microphones to which Merchan referred are just down the hall from Room 1530 (the courtroom), where—addressing the tiny press pool from behind a short metal barrier that fittingly resembles prison bars—Trump launches his morning fusillades against the judge (‘crooked”), the DA (“crooked”), and the trial (“rigged”). None of this is prohibited under the gag order. 

You have probably seen more of those brief exchanges with the media than I have because those of us with courtroom passes must remain seated for five to ten minutes until Elvis (sorry, that’s Bill Clinton, not this sociopathic carnival barker) has left the building.

The two new contempt charges related to Cohen stem from Trump saying outside court on April 22, “When are they going to look at all the lies that Cohen did in the last trial? He got caught lying in the last trial.” The next day, the 45th president of the United States was at it again: “Michael Cohen is a convicted liar, and he’s got no credibility whatsoever.” We’ll see whether Merchan believes these lines were in response to a specific Cohen attack or unprovoked. If the latter, Trump will be fined $1,000 for each of them.

The judge indicated that the most serious contempt charge stems from Trump’s complaint about the jury in an interview with Real America’s Voice, a MAGA cable and satellite channel: “The jury was picked so fast—95 percent Democrats. The area’s mostly all Democrat. You think of it as a—just a purely Democrat area. It’s a very unfair situation, that I can tell you,” Donald said of the New York City borough where he lived for decades.

These comments preview Trump’s political argument if he gets convicted. He’ll bash the jurors as biased Democrats, question their integrity, and weaken faith in the criminal justice system even more than he has already. 

Merchan believes that’s a flagrant violation of his gag order, which explicitly bars attacking jurors. 

 “He spoke about the jury. He said the jury was 95 percent Democratic,” Merchan barked from the bench, perhaps not recognizing that he was inadvertently spreading Trump’s calumny. “The implication was that this is not a fair jury.”

When Blanche, the defense attorney, tried distinguishing between “the jury” that Trump attacked and individual “jurors” whom he spared, Merchan batted away the lame distinction. 

Then Blanche, an experienced white-collar criminal defense lawyer, tried to argue that commentators were allowed to comment on juries, so why couldn’t Trump? Merchan thought this silly excuse—which sounded like something that the 77-year-old defendant himself came up with—was even weaker than the one Blanche used in the first hearing on the gag order. In that one, Trump re-posted contemptible (in both senses of the word) right-wing content. 

After that first hearing, Merchan ruled there’s no difference between posting original venomous content and re-posting someone else’s. Now, he reiterated that to avoid the gag order, Trump had to be responding to specific attacks.

Blanche argued that “the defendant wasn’t responding to anything in particular,” just months and years of attacks from Cohen and others. Prosecutor Matthew Colangelo replied that the gag order had only been in place for a few weeks and thus didn’t cover months or years of mutual vitriol and was not interfering with Trump’s right to campaign.

Trump has also trashed Stormy Daniels, who is on the witness list. This led Blanche to complain that Trump should be allowed to respond to President Joe Biden’s remarks at the White House Correspondents Dinner last month. Blanche quoted Biden’s quip, “Donald had had a few tough days lately. You might call it stormy weather.” 

The judge was incredulous, “Are you saying that he [Trump] cannot respond without saying, ‘Stormy Daniels’?” Merchan said. “He can certainly respond to President Biden.”

“The defendant is doing everything he can to make this case about politics,” Colangelo summarized. “It’s not. It’s about his criminal conduct.”

There is one count where Trump might skate. Merchan didn’t seem to care about Trump saying last week that he hoped David Pecker would be “nice” to him on the stand. The judge may not have yet read the full text of Trump’s comments about Pecker. I found the line—“This is a message to Pecker: Be nice.”—to be threatening, not complimentary. (See Joe Pesci’s “Be nice!” scene in Casino.) We’ll see if on further inspection, the judge agrees.

As I wrote in my Day Nine report, it’s unfortunate that a former president being held in contempt of court is not much bigger news. Imagine if Richard Nixon (pardoned before any trial) had been found guilty of contempt. It would have generated “Saturday Night Massacre”-level coverage. This era will be remembered for its numbness. A world-class deviant is “defining deviancy down” in the memorable formulation of the late Daniel Patrick Moynihan.

The contempt debate has personal resonance for me. In 1969, I was a 12-year-old kid on Chicago’s North Side, bursting out the front door every morning to pick up the Sun-Times on our porch. That year brought big coverage of the Chicago 8 conspiracy trial that grew out of the disturbances at the 1968 Democratic Convention, and I reveled in a minor connection to it: Yippie leader Abbie Hoffman was sleeping in the spare bedroom of family friends who rightly suspected the FBI tapped their phone. Their overdue phone bills were mysteriously paid.) The name of the trial was changed to the Chicago 7 when Bobby Seale, co-founder of the Black Panthers and completely innocent, was severed from the case. Judge Julius Hoffman (unrelated to Abbie) infamously ordered Seale bound (to a chair) and gagged (with a cloth) for disrupting the courtroom. He sentenced Seale to four years in prison for contempt, a decision overturned on appeal.

Merchan won’t order Trump bound and gagged, even if he starts shouting in the courtroom. And he is unlikely to jail him or impose my preferred punishment, picking up trash in an orange jumpsuit. But as he summoned the jury back into the courtroom, it was clear the judge’s patience with the defense was wearing thin.

So was Trump’s. As usual, he’s upset about the way his attorneys are handling the case, though he doesn’t show it in the courtroom. Instead, Trump is trying to sound chipper. On Wednesday, he posted on Truth Social, “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!!!” 

When he opens his eyes and walks out during breaks, his expression is less defiant than a study in frustration, as if he’s resigned to this temporary fate. At the end of the day he shot MSNBC’s Lawrence O’Donnell a dirty look like the one he sent George Conway’s direction last week.

Mid-morning, Prosecutor Joshua Steinglass resumed his direct examination of Keith Davidson, the Beverly Hills lawyer who represented both Karen McDougal and Stormy Daniels. He was pre-butting what would happen on cross-examination.

After testifying that the release of the Access Hollywood tape on October 7, 2016, had “tremendous influence” on the marketability of the Stormy Daniels story, Davidson told a tale of growing frustration with Cohen over why the urgency Cohen expressed on an almost hourly basis was not matched by actual delivery of the money.

“I believe he [Cohen] was not telling me the truth” about “delays in funding” the hush money, Davidson testified. When I first heard this, I wondered why prosecutors wanted to re-emphasize that Cohen lied to Davidson. Then I realized that it reinforced the chronology they were building of Trump and Cohen freaking out over the Access Hollywood tape, Trump being too cheap to pony up, and Cohen frantically setting up a new company and drawing on his home equity loan to make the payment.

In the negotiations, Cohen demanded “much higher liquidated damages” than Davidson offered—$1 million for every time Daniels (signing as Stephanie Clifford) breached the contract by talking about her relationship with Trump. Davidson agreed to it even though he thought it unenforceable. 

Daniels and Cohen signed the contract on October 28, 2016, and Davidson on October 31, a week before the election. Only Cohen and Davidson retained copies, with Davidson writing by hand in the space reserved for the pseudonym “David Dennison,” the real name of Donald Trump.

Four days before the election, The Wall Street Journal exposed how American Media International, the National Enquirer’s parent company, used “catch and kill” on the McDougal story. Cohen told Davidson that “the boss was very upset, and he threatened to sue” McDougal. Like the reaction to the Access Hollywood story, this goes to Trump’s motive for signing off on the hush money to Stormy Daniels.

After Trump won, Davidson texted Dylan Howard, an executive at AMI, what he called “gallows humor”:

 “What have we done?”

Howard replied: “Oh, my God.”

On the stand, Davidson blandly testified, “There was an understanding that our activities may have in some ways assisted the presidential campaign of Donald Trump.”

This bolsters the prosecution’s argument that the members of the conspiracy (including Trump) intended to influence the election, an important element of the DA’s case.

Still trying to pre-butt, Steinglass asked about what happened after the election, when Cohen frequently called Davidson. 

On December 9, Davidson was holiday-shopping at a “strangely decorated” big box department store with an “Alice in Wonderland” motif of oversized characters (fitting, I thought) where “you felt small.” Cohen called and unloaded:

“Jesus Christ, Can you fucking believe I’m not going to Washington after everything I’ve done for that fucking guy,” a reference to his not being offered an administration job. “I’ve saved the guy’s ass so many times.” 

Cohen told Davidson, “That guy is not even paying me the $130,000 back.” 

I was pretty sure we’d hear more about that statement on cross-examination. But I didn’t predict what else Davidson would say on cross about Cohen’s state of mind a month after the election—that Cohen was “despondent” and Davidson feared he “would kill himself.” Cohen had delusions of grandeur. He thought he should have been considered to be Trump’s attorney general or White House chief of staff. When Cohen testifies, we’ll learn if Trump offered him anything. Either way, Cohen was extremely disappointed.

As a kid fascinated by American presidents, I learned about the assassination of President James A. Garfield in 1881. The assassin, Charles J. Guiteau, was routinely described in history books as a “disappointed office-seeker.” 

Trump’s defense lawyers won’t make reference to Garfield, whom Trump remembers only as a cat. They don’t need to. The jury learned that Cohen had a huge personal reason for seeking revenge against Trump, and it landed.

On direct, Davidson explained that when the Stormy Daniels story broke in 2018, he wrote a statement in the actress’sname denying the affair. In this moment of pre-buttal, the jury began to learn that this sleek lawyer was also a skilled liar. It turned out that if you knew how to decode the denial, it wasn’t really a denial at all but just part of what Davidson cynically called the usual “cat-and-mouse interaction with the press.” 

For instance, Davidson claimed that when Daniels wrote in her ghosted statement, “Rumors that I received hush money from Donald Trump are false,” she—and Davidson—weren’t lying because the “consideration” agreement she signed made no specific reference to hush money. And when she said she had “no sexual and/or romantic relationship” with Trump, she was, uh, telling the truth, or at least part of it. The encounter was neither romantic nor a relationship, and the “and/or” was a valuable loophole.

Davidson exuded smug pride when explaining that “no sexual and romantic relationship” was technically true.

Daniels used a variation of the loophole on Jimmy Kimmel Live. Later, she repudiated her repudiation, then recently changed her story to suggest perhaps her liaison with Trump was not entirely consensual. All in all, as either Stormy Daniels or Stephanie Clifford, she will make a terrible witness if she’s called.

In the meantime, handling Stormy brought Davidson and Cohen into closer contact. When she recklessly fired Davidson as her lawyer in favor of the famous (but ultimately criminal) Michael Avanatti, Cohen and Davidson forged a much closer connection than Davidson conveyed during his first day on direct. 

By this time, I was beginning to think they were two peas in a pod and that Trump might benefit from what could be called “The Sleazy Lawyer Effect.” Cohen and Davidson were just sleazy lawyers trying to get some money out of Trump.

This was the theme of Emil Bove’s blistering cross-examination: Davidson is basically an extortionist by trade. Bove was much better today than when he messed up cross-examining David Pecker last week and had to apologize to the jury. He also got lucky because Davidson proved to be a much worse witness for the DA than Pecker, whose mild answers on the stand made his testimony seem credible enough. 

Bove began by establishing an essential point for the defense: Davidson admitted he had never met Trump and had no first-hand knowledge of his business records. “Everything you know about President Trump comes from either TV or Michael Cohen, right?”

Davidson said yes, but that was one of his only straight answers of the afternoon. Much of the rest of the time, he said, “I don’t recall” about incidents he clearly recalled and played lawyerly word games that must have annoyed the jury.

When Bove said, “I’m not here to play lawyer games with you,” the prosecution’s objection was sustained. But Davidson took the bait. “You’re getting truthful answers, sir,” he said sharply. “If you’re not here to play legal games, then don’t say ‘extract.’” 

It turned out that extracting settlements and using leverage to the hilt was the polite way of describing Davidson’s standard business practices. As Bove established, the proper term is extort. Here the louche tabloid world Trump has inhabited for half a century came alive in the courtroom with lurid stories that took jurors far beyond tales of a Playboy “Playmate of the Year” and porn star. 

Davidson smugly denied even worrying about the line between proper negotiation and extortion, which wasn’t believable on its face and played even worse for him when it became clear that he would have to answer for his sleazy law practice. 

 Bove then walked Davidson through a series of controversies involving troubled celebrities, all of which made Davidson look unsavory and guilty of some kind of extortion, even if he was never prosecuted for it. He had his law license suspended for 90 days, became the target of a Tampa police report, and, in a different case, an FBI sting operation. 

Davidson seems to have had a sub-specialty in sex tapes. In one highly publicized case, he “extracted” big money out of Hulk Hogan in exchange for not airing sex tapes. In another, he worked with a “sex tapes broker” named Kevin Blatt to get $75,000 out of pro-Nazi reality TV star Tina Tequila. 

Davidson represented a leaker at the Betty Ford Clinic who convinced TMZ to give her $10,000 in exchange for suppressing a story about Lindsay Lohan’s addiction. 

“You’ve represented some clients who you helped get paid by Charlie Sheen, right?” Bove asked.

“I’ve represented several clients who had claims against Charlie Sheen,” Davidson answered carefully.

“And who you extracted sums of money from Charlie Sheen on behalf of, correct?”

“There was no extraction,” he answered carefully. “We asserted that there was tortious activity committed and valid settlements that were executed.” Eye roll. 

Bove pressed Davidson about Stormy Daniels saying to him, “If he [Trump] loses this election, we all lose all fucking leverage.” Later, when Daniels retracts her claim, he and Cohen discuss “settlers remorse” and namecheck Larry Flynt, the late Hustler publisher. in the process.

All of this laid the groundwork for the defense to argue that Trump was just the innocent victim of experienced extortionists.

Things went much better for the prosecution on Friday, and I’ll report that to you tomorrow. 

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