Below is my column on the completion of the testimony of Stormy Daniels and the start of the testimony of Michael Cohen. With a dubious legal theory, the testimony has only magnified the criticism of the prosecution as parading sensational rather than material evidence before the jury and the public. Manhattan District Attorney Alvin Bragg is losing even CNN hosts and legal analysts. Fareed Zakaria noted “I doubt the New York indictment would have been brought against a defendant whose name was not Donald Trump” Elie Honig has observed that, if brought in a less Democratic district, “I would say there’s no chance of a conviction.” The Bragg case was never “normal” but last week it seemed to go paranormal.
“I see dead people.” Before this week, that claim was most associated with the nine-year-old character Cole Sear from the 1999 film “The Sixth Sense.” But now it is one of the talents claimed by former adult film actress Stormy Daniels in her bizarre testimony in Manhattan during former President Donald Trump’s trial.
It turns out that speaking to the dead was one of the few relevant things Daniels had to offer in the case, which is now on a collision course with a motion for acquittal before the case even goes to the jury.
The Daniels testimony will live in infamy in the annals of criminal justice. For two days, she offered lurid and completely irrelevant details whose only possible purpose was to humiliate Trump. Admitting that she was coached by the prosecution in her testimony, it was clear that she was there not to win a case but to win an election. Judge Juan Merchan allowed this legal burlesque to unfold in his courtroom, later blaming defense counsel who had vociferously objected to her appearance and the scope of the examination.
The cross examination was devastating. It shattered her laughable claim that she had not really been seeking money in shaking Trump down for a non-disclosure agreement, a claim contradicted by her own former lawyer. Daniels also revealed that she had spoken with the dead, and that a ghost had once held her boyfriend under water in a bathtub. She also said that she lived in a haunted house, only to discover later that the spirit haunting it was actually a large possum.
In a case based on a dead misdemeanor and a rapidly falling heart rate on the manufactured felony, one can understand the appeal of witnesses who can speak for the dead. Indeed, Daniels’s graphic testimony may prove the moral high point of this trial, since serial perjurer and disbarred attorney Michael Cohen is scheduled to testify Monday.
Cohen recently broke his pledge, midway through the trial, to stop attacking and taunting Trump. Cohen has insisted that he deserves the protection of the gag order by Judge Merchan as a witness, despite serious constitutional concerns. Merchan continues to threaten Trump with jail if he responds to Cohen’s unrelenting attacks. Merchan waited for the weekend before his testimony to suggest that the prosecutors tell Cohen to stop the public antics.
But it remains unclear what the order is protecting Cohen from. Not only is he trolling for money on social media with reference to the trial, but he is also widely being attacked by others. It is only Trump who cannot address his attacks, including political opposition to his campaign.
Cohen’s testimony will be the culmination of this travesty of a trial. But Bragg already jumped the shark with Daniels. After three weeks, legal experts are still debating what the crime was that Trump was seeking to conceal by recording payments for a standard non-disclosure agreement as a legal expense. (That is the same characterization used by Hillary Clinton’s campaign for its funding for the infamous Steele dossier.)
It is still unclear that Trump even knew how the payments were characterized, and the alleged false record was not even created until after the election was over. Yet he stands accused of using the “false business records” to somehow steal or rig an election that was already over.
After this circus with Cohen is complete, Trump will be allowed to testify. He would be insane to do so. Merchan has already said that he will allow a broad scope to cross-examination, making any appearance unlikely.
That is when Merchan will face a key test of judicial ethics. He has failed to protect the rights of the defendant from a baseless, politically motivated prosecution. He could insist that he simply felt Bragg had a right to present his case. He will soon be done and, as expected, it is entirely based on Cohen, a disbarred perjurer who will ask for his former client to be sent to prison for following his own legal advice.
After Bragg closes the prosecution’s case, the defense will make a standard motion for dismissal. Merchan should grant that motion.
There has been no showing of an actual crime, let alone a clear record tying Trump to key decisions or actions.
Merchan will then have to decide whether he has the courage that Bragg lacked. Bragg knew that this case was ridiculous. The Justice Department had declined any prosecution for a federal campaign finance violation, the theory referenced in the case. Indeed, it did not even seek a civil fine over the payments. Bragg’s predecessor had also rejected the prosecution.
When Bragg took over, he similarly balked and stopped the move toward an indictment. But two prosecutors in his office, Carey R. Dunne and Mark F. Pomerantz, then resigned and started a public pressure campaign to get New Yorkers to demand prosecution.
Pomerantz went even further and took an action that some of us viewed as deeply unethical and unprofessional. Over the objections of his own former office and colleagues, he published a book on the case against Trump — then still under investigation and not charged, let alone convicted. It was a pressure campaign directed at Bragg. In New York, Bragg knew that he would either have to indict Trump or forget about reelection.
Merchan will now have to make the same choice in yielding to politics or principle…or to the paranormal. He has already allowed every effort to bring this dead misdemeanor back to life. But even Stormy Daniels may not be able to serve as Merchan’s medium in reaching back eight years.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
