June 10, 2024

Does Trump really want to base his appeal on alleging that the testimony of this witness was prejudicially lurid? By Hal Brown, MSW


In a NY Times guest essay today, "I’m an Appellate Lawyer in Manhattan. If Trump Appeals His Conviction, He Faces Long Odds" attorney Robert L. Stavis writes:

To warrant reversal of a jury’s verdict on account of an error, the appellate court must find that an error of some kind led directly to the conviction. A technical error that does not rise to that level is called a “harmless error” and will not cause a reversal of a conviction.

He went on to give this example:

In Mr. Trump’s trial, perhaps the best example of harmless error occurred during the prosecutor’s direct examination of Stormy Daniels. The prosecutor elicited intimate details of the sexual encounter Ms. Daniels alleges she had with Mr. Trump and also her testimony that she felt physically threatened by the circumstances of their encounter. Mr. Trump’s defense counsel argued that by discussing the sexual details, which made Mr. Trump appear pathetic, and the statement that she felt intimidated, which made it appear as though the sex was not consensual, the prosecutor had greatly prejudiced Mr. Trump in the eyes of the jury. This was the subject of a mistrial motion, which Justice Juan Merchan denied.

If this supposedly prejudicial testimony is put to the judges on the appellate court, they would ask if the lurid portions of Ms. Daniels’s testimony caused the jury to convict Mr. Trump. The answer here is a clear no.

Since his conviction Donald Trump has persistently raged against Judge Merchan and D.A. Alvin Bragg. Absent from his attack list is the woman without whom there would have been no trial. A gag order prevents him from attacking witnesses though if he could I doubt he would win a social media battle with Daniels who tweeted “Real men respond to testimony by being sworn in and taking the stand in court. Oh...wait. Nevermind.” (Read article about this.)

This is from Politico: An angry Trump gathers allies to push against Stormy Daniels.


  • When Stormy Daniels testified in Donald Trump’s hush-money trial, the former president huffed in his seat. He shook his head at times. His anger was so visible and distracting that the judge asked his lawyers to tell him to cool off
  • Trump’s two days in court were clearly frustrating and excruciating for the former president, who was visibly angry during her testimony, which included intimate details of their alleged sexual encounter — including the type of underwear the former president was wearing.
  • “Her testimony makes [clear] what we already know about Trump — essentially that he’s a sleazy, narcissistic, cheater,” said Horn (a Lincoln Project so-founder), who said Daniels’ testimony was specific and detailed, lending her credibility. “Did she sound angry? Was she eager to see him held accountable? Yes, of course ... she speaks of experiences and fears that most women can relate to.”

I can't imagine that Trump wants to have Stormy's testimony which was decidedly unflattering to him to be part of his basis for an appeal. We know how much of his self-image is based on how he thinks he is God's gift to women: "I can grab them by the...." etc.

If he won his appeal based even in part on the testimony of Stormy Daniels it wouldn't be because she committed perjury and that there were untruthful elements in what she described, or that the encounter didn't happen, as he has claimed. It wouldn't be that the details were embellished to seem lurid. It would be because her testimony was prejudicially lurid and, as the Stavis essay says, made him appear pathetic.

There are psychological reasons Trump may aovid publicizing the Daniels description of what happened between them. He is highly invested in believing that he possesses extraordinary prowess with women. From his professional wrestling performances to the images he has on his electronic trading cards you can see how he wants people to see him as hyper-masculine. It had to sting to have an adult movie star undermine this image beginning with mocking him once she went public (see article about her book "Full Disclosure" from The Guardian) about the encounter and culminating in the NYC court where what she described was widely reported.

RawStory has a brief summary of the NY Times essay here.

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