Trump Trial’s Salacious Statements Never Should Have Happened: Experts

Stormy Daniels leaves Manhattan Criminal Court after testifying at former U.S. President Donald Trump's trial for allegedly covering up hush money payments linked to extramarital affairs, in New York City, on May 9, 2024. (Charly Triballeau /AFP via Getty Images)

This week’s testimony of an adult film actress against former President Donald Trump was headline-grabbing and gasp-inspiring. It also never should have been permitted, legal analysts say.

“It’s shameful that the judge allowed it,” Phill Kline, a Liberty University law professor and former Kansas attorney general, told The Epoch Times.

That’s because the sometimes-lewd statements of Stephanie Clifford, also known as “Stormy Daniels,” about an alleged 2006 one-night affair were unrelated to the business-records accusations President Trump faces.

Allowing such testimony violated a basic American legal precept: That prosecutors are barred from presenting irrelevant evidence, especially if it “could incite a jury, because of dislike or anger, to punish the person, regardless of whether they find them guilty or not,” Mr. Kline said.

Still, other legal analysts applauded Ms. Clifford for withstanding difficult questions; they see signs that the trial is going well for prosecutors and is wrapping up faster than expected.

But the controversy over Ms. Clifford’s testimony adds to concerns about the way prosecutors and the judge have handled a case that appears to be built on a shaky legal foundation.

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Yet its consequences are serious. President Trump faces up to a decade in prison if convicted, and the fallout could affect the U.S. justice and political systems for years to come.

“We have some basic protections for any person, regardless of whether they are favored or disfavored by culture, whether they’re popular or unpopular, that protect the presumption of innocence in the courtroom,” Mr. Kline said.

By allowing Ms. Clifford to testify, Judge Juan Merchan “eviscerated” those protections, Mr. Kline said.

Ohio attorney Mike Allen, who has served as a judge and prosecutor, said Ms. Clifford’s testimony served no purpose “other than to slime Mr. Trump.”

Her statements did nothing to address the elements of the alleged crimes, which prosecutors must prove to jurors beyond a reasonable doubt, Mr. Allen said.

The Crux of the Case

Prosecutors are trying to show that President Trump worked with others to cover up payments made to Ms. Clifford, buying her silence about the alleged affair—a claim that could have hurt his successful 2016 presidential campaign. Such nondisclosure agreements are legal; famous people frequently use them to “hush” accusers who could damage their reputations.

Michael Cohen, a former lawyer for then-candidate Donald Trump, paid Ms. Clifford $130,000 and then was reimbursed. Prosecutors allege those reimbursements were improperly classified as legal fees to hide their true purpose.

Normally, filing false business records would be a misdemeanor in New York. But prosecutors, using a novel legal theory, allege President Trump and others created the false records in a scheme to influence the 2016 election, elevating those alleged crimes into felonies. He denies any wrongdoing.

“Nothing that President did is criminal,” Mr. Kline said.

He noted that celebrities and political candidates routinely work to “push” publicity that benefits them. They also work to “get stories buried,” Mr. Kline said, adding, “It happens every day.”

Therefore, to see a hush-money case pressed against President Trump, the presumed Republican presidential nominee, demonstrates “there are those on the left who believe government is there to punish their opponents, and to support their own authority and power,” Mr. Kline said.

“It should not happen in America. It’s a destruction of the rule of law.”

Important Points From Ex-Trump Employee

But Mr. Kline thinks prosecutors dealt a blow to the core of their own case with the May 7 testimony of former Trump employee Jeffrey McConney.

Mr. McConnney, who had overseen financial accounting at the Trump Organization, testified why the apparent reimbursements to Mr. Cohen were recorded as legal expenses. Mr. Cohen made written requests for the money citing a “retainer agreement” for his legal services, records showed.

Mr. McConney also said he had no reason to believe that President Trump, who was serving in the White House during the 2017 payments to Mr. Cohen, would have known how those disbursements were classified in business ledgers.

President Trump simply “signed the checks that were brought to him,” Mr. Kline said, citing Mr. McConney’s testimony.

To prove their case, prosecutors “must show some knowledge and intent by President Trump,” Mr. Kline said.

But the testimony by Mr. McConney wipes out “any claim of knowledge and intent by the president,” Mr. Kline said.

Even though Mr. McConney’s testimony was much more relevant to the case, his statements got far less attention than Ms. Clifford’s did.

Other Experts Weigh In

Attorney Glenn Kirschner, a legal analyst for NBC News, wrote on social media that it “spells bad news for Trump” that prosecutors decided they didn’t need model Karen McDougal to testify about a Trump nondisclosure agreement she had, similar to one involving Ms. Clifford.

Mr. Kirschner explained further in a video statement: “The prosecutors almost certainly believe the evidence is coming in well; the witnesses are withstanding cross-examination.”

“Heck, it sounds like Stormy Daniels was getting the better of Donald Trump’s defense attorney,” Mr. Kirschner said in the video.

In her evaluation of Ms. Clifford’s testimony, former prosecutor Kristen Gibbons Fedden commended prosecutors for presenting Ms. Clifford as a witness with flaws, so she came across as more “authentic.”

But Ms. Fedden noted that President Trump’s lawyers were, in essence, pointing out that Ms. Clifford earns a living by “fabricating sexual encounters.”

And if jurors believe Ms. Clifford did that with President Trump, the jury might become more empathetic toward him. “It makes him look like he’s a victim of extortion,” Ms. Fedden said in an interview with MSNBC.

Still, regardless of what transpired between then-businessman Donald Trump and Ms. Clifford, “The overarching issue here is whether or not Donald Trump falsified business records to hide that story, whether true or false,” Ms. Fedden said.

Unable to Respond

As Ms. Clifford recounted lurid details in a Manhattan courtroom, President Trump, who has denied the alleged affair, was forced to remain silent under a gag order. Judge Merchan forbids him from commenting about witnesses and others tied to the case.

Although the order’s constitutionality remains in dispute, the judge fined President Trump $10,000—$1,000 for each of 10 social media posts deemed to have violated the order.

Judge Merchan has threatened to jail President Trump for further infractions, including making facial expressions that might seem intimidating to witnesses. That’s what the judge told President Trump’s lawyers this week, after seeing the former president making faces in reaction to Ms. Clifford’s testimony.

At times, she spoke in terms that “were so explicit that the judge had to cut her off,” Mr. Allen noted. “The judge said that some things are better off left unsaid.  Then why did he permit her to be called as a witness in the first place? Or why didn’t he at least shut her testimony down earlier?”

Judge Merchan deemed Ms. Clifford’s testimony relevant, yet he refused to allow defense lawyers to question Mark Pomerantz, who formerly served as a prosecutor on the New York case and wrote a book about it. In a May 10 ruling, Judge Merchan called the questioning of Mr. Pomerantz “an improper fishing expedition.”

‘Dumpster Fire’ Burning

Jonathan Turley, law school professor at George Washington University, retorted that the judge allowed prosecutors “to virtually trawl an ocean of lurid, irrelevant testimony” with Ms. Clifford.

Mr. Turley, commenting in a series of social media posts, called the testimony a “Dumpster fire” that Judge Merchan allowed to rage for a full day “and then said the jury may have to disregard much of what they saw and heard.”

President Trump’s lawyers asked the judge to halt the proceedings and declare a mistrial based on statements that Ms. Clifford should not have made.

But the judge refused to do so, citing a lack of objections from the Trump lawyers. That’s “ludicrous,” Mr. Allen said, adding, “He completely ignores the fact that there was a standing objection to her even testifying.”

In admonishing President Trump’s lawyers, the judge most likely was trying to create a court record “to cover himself,” Mr. Allen said.

Instead, “He showed for all the world to see, his absolute bias against Mr. Trump,” Mr. Allen said, adding, “I have noticed over the past few weeks that Trump’s supporters and even some of his detractors are appalled at what is happening in that New York courtroom.”

Increasingly, people are seeing the court system being used “for a partisan political purpose,” Mr. Allen said.

“In the coming weeks, I expect the American people to become even more vociferous and vocal in their opposition to this despicable tactic.”

Michael Washburn and Catherine Yang contributed.