Once again, Donald Trump’s ego is getting in the way of his legal defense.
Trump is well-known in legal circles as the client from hell. He regularly demands his lawyers do unreasonable things, refuses to follow their advice, and then blames them when things go wrong. He’s also famous for not paying his bills.
That’s why the opportunity to represent a former president is not the catnip for top-notch legal talent you might expect, and why Trump often has trouble getting decent representation. Nonetheless, unlike in some of his other trials, his defense attorneys in the Stormy Daniels hush money case are, at least so far, doing a credible job and playing the cards they’ve been dealt as well as can be expected.
Unfortunately, one of those cards is a client who is making them do things they’d rather not do – like letting the prosecution put Stormy Daniels on the witness stand.
As explosive as her testimony is, it’s only tangentially relevant to the case the prosecution has to prove. All the prosecution has to show, as far as Daniels is concerned, is that Donald Trump paid her off and then tried to cover it up by creating false business records. Whether Daniels and Trump ever had sex or not doesn’t actually matter, at least not legally.
Strategically, it would probably have been better to offer to stipulate that Daniels’s story was true and then ask the judge to keep her off the witness stand. It might not have worked, but at the very least, Judge Merchan might have agreed to limit her testimony.
But for years, Trump has been claiming her story was all lies. Given the wealth of corroboration that’s available about their numerous contacts, that’s a tough sell. But Trump, apparently, won’t let it go and is insisting that his lawyers go all-in on attacking Daniels’s credibility and arguing that she made the whole thing up.
The end result was that Daniels got to tell her story in full on Tuesday, and the case against Trump went from a fairly dry documents case, where the jury heard from accountants about the exciting procedures the Trump organization used to authorize checks, to a case about an elicit sexual affair, where the jury heard about Trump’s decision not to wear a condom while he cheated on his recently pregnant wife with a porn star.
This was all so bad for the defense that Trump’s lawyer asked for a mistrial, which Judge Juan Merchan denied, though even the judge was somewhat shaken by her testimony, saying “that there were some things that probably would’ve been better left unsaid” and agreeing to give a limiting instruction to the jury telling them how they could use Daniels’s testimony.
The irony is that if the defense somehow succeeds in convincing the jury that Daniels is lying and made up the entire story, it’s arguably worse for Trump than if she’s telling the truth.
One of Trump’s defenses is apparently going to be that he paid off Daniels to keep his wife, Melania, from hearing about it rather than for any political motive. But that makes sense only if the story is true. If the story is false — and he didn’t care about the political implications — rather than arranging a secret payout of $130,000, you’d think he’d simply have told Melania about how this crazy lady he barely knew had made up a completely bogus tale to try and shake him down.
Of course, Trump is also ignoring his lawyers’ advice when it comes to the gag order and acting up in court. This has already made their job harder since, out of concern over what Trump might do, prosecutors aren’t revealing who their next witness will be until the last minute.
On Tuesday, Judge Merchan admonished Trump’s attorney for Trump’s behavior in court, and he’s already been found in contempt 10 times. Pro tip: When a judge tells you that “the last thing I want to do is put you in jail,” the next thing he is going to do is put you in jail.
But the big kahuna, the tour-de-force of bad client decisions, will be coming up in about three weeks, when Donald Trump will decide whether or not to testify in his own defense. No competent defense attorney would ever dream of putting Trump on the stand voluntarily, but this is entirely a decision for the defendant, so Trump may well ignore his attorneys’ advice. He’s already put his foot in it by publicly claiming the gag order prevents him from testifying, and has been instructed by the judge in open court that this is not the case. At the moment, Trump claims he’ll probably take the stand.
Donald Trump once said his “gut tells me more sometimes than anybody else’s brain can ever tell me.” Maybe that works for him in politics, but it isn’t working for him in court. Perhaps he ought to pop a few antacids and start listening to his lawyers instead.
Chris Truax is a Republican and an appellate attorney.