The Trump defense team is expected to continue its cross-examination of actress and director Stormy Daniels. If their cross so far is any predictor, their approach seems to be a performance for their client, former President Donald Trump.
Susan Necheles—the only female lead attorney on the team—is tasked with what should have been the delicate task of cross-examining Daniels, who is the centerpiece of Manhattan District Attorney Alvin Bragg’s election interference case narrative, because she explains why Trump was motivated to hide their interaction.
The cross-examination needed to be delicate, because Daniels was likely to be viewed sympathetically by the jury based on her public demeanor and how she has come across in public appearances, including interviews. Indeed, it’s clear how worried the Trump defense team is about her likeability because they based a whole meritless motion to dismiss the case upon the mere release of a documentary film.
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Despite ample time to prepare for Daniels and ample heads up about how she was likely to come across to the jury, Necheles adopted an approach that is likely to backfire on Trump’s defense. She chose to try to outdo her two male co-counsel in aggressiveness by starting her examination with a substantively weak question, suggesting that Daniels had “rehearsed” her testimony.
It’s a baffling way to start, because jurors are specifically instructed by judges that it’s proper to prepare witnesses, and that lawyers would not be doing their jobs if they just threw witnesses cold onto the stand.
Necheles ignored this, pretending the jury was so ignorant as to be fooled into thinking that preparation equals scripted responses written by attorneys, rather than the witness’ own testimony. Daniels easily resisted this clumsy attack, which led Necheles to try a word-salad game with Daniels—and arguing with her over the term “mock” versus “rehearsal.”
Eventually, by the close of the first day, Necheles repeatedly accused Daniels of falsehoods, prompting Daniels to reportedly yell “false” back at Necheles.
This approach, thus far, has been a wasted opportunity for the defense because Daniels’ direct testimony had been somewhat shaky at times.
At the start, she appeared to speak too quickly and sometimes laugh at her own jokes—both classic signs of a witness being rather nervous. Judge Juan Merchan also exhibited some puritanical judgment about the substance of her testimony, telling the defense he was surprised they had not objected more and indicating he thought there had been too much detail about the alleged sexual encounter between Daniels and Trump.
Her testimony offered several good areas for the defense to attack, with the strongest being that she simply cannot tie Trump directly to a coverup scheme or the falsification of records. Nor can she speak to the political impact her story would have had—which goes to the alleged intent on Trump’s part to engage in election interference.
Her story is of a young woman (she was 27 at the time) encountering an older, powerful, rich man who later wanted to buy her silence. The smartest cross-examination approach by team Trump would have been to only ask a few questions, pointing out that she could shed no light on the actual falsification of records, and then sit down.
Trump’s lawyers should have expected that she would portray the encounter with Trump in a way unflattering to Trump because she has already spoken about this publicly. There was no excuse for them not knowing the details, in fact, they allowed her to go into details apparently without much objection before making a baseless motion for mistrial, claiming that her testimony had somehow tainted the jury.
A particularly silly part of the defense’s mistrial argument was alleging that Daniels had greatly changed her story over the last decade. This latter point, if true, would offer fertile ground for cross-examination that any trial lawyer would salivate over. But it is hardly grounds for a mistrial.
One aspect of Daniels’ testimony was potentially more prejudicial than probative. That was the alleged encounter Daniels described about being threatened.
Without careful treatment by the prosecution and/or an instruction by the judge, the jury might believe the alleged threat was directed by Trump. That would be an improper conclusion to draw based on the evidence and should be corrected. The incident could, however, be relevant to Daniels’ motivation to speak out because she was worried about her safety and that of her family.
Although Necheles still may have more effective cross-exam questions for Daniels, her demeanor and approach thus far sacrifice effectiveness for posturing. Her co-counsel, Todd Blanche—who like Necheles had enjoyed a very strong reputation—has already suffered for adopting an overly aggressive approach in his arguments defending Trump against accusations that the ex-president has repeatedly violated the gag order in the case. In making his meritless arguments, Blanche bought himself the ultimate reprimand, with Judge Merchan telling him he had lost all credibility with the court.
Blanche’s taking this bullet for Trump appeared to do little to help, as Merchan did find Trump in criminal contempt—a historic first for a former President of the United States.
Ultimately, the test will be how the defense can use the cross-examination to persuade the jury they should acquit or even hang. But if they fail in this effort—and it’s important to keep in mind that hung juries are a small percentage of jury outcomes—then the legal post-mortem must include missteps in their defense. Missteps that would certainly include the way Susan Necheles has begun her cross of Stormy Daniels.
If Necheles and her co-counsel are performing for their client—and even channeling the strongman image Trump likes to project—that may prove to be a colossal blunder.
Bullying may work well on the schoolyard, but doesn’t often go so well in courts of law.
