‘Grueling’: The Trial May Be Getting to Trump

Until this week, Donald Trump’s criminal trial in Manhattan has been, despite its unprecedented nature, relatively boring. Perhaps intentionally so. Then came the prosecutors’ most notable and attention-grabbing witness to date — the former adult film star Stormy Daniels. It was a remarkable and distinctly awkward affair for the former president, who sat through hours of detailed and embarrassing testimony about their alleged extramarital sexual relationship.

But thanks to the absence of cameras in the courtroom — and despite the wall-to-wall coverage — there’s much that remains unclear to those of us on the outside, regarding Daniels and much else. So we convened the second in a series of roundtable discussions with a group of POLITICO’s legal and political reporters to take readers behind the scenes of the courtroom and the Trump campaign.

We were joined by Ben Feuerherd, who has been in the courtroom and in the courthouse every day of the trial covering this historic proceeding; Josh Gerstein and Kyle Cheney, who have been closely following and reporting on Trump’s legal travails for years; and Meridith McGraw, who has been covering the Trump reelection campaign while the candidate spends four days a week on trial in a Manhattan courtroom.

With the trial roughly halfway through, it was also an opportunity to discuss some surprising turns, including where the prosecution and the defense may have scored some real points before the jury.

This transcript has been edited for length and clarity.

Ben, Stormy Daniels took the stand on Tuesday and will appear again on Thursday. The timing of her testimony was a surprise to those of us on the outside. What was the scene like in the courtroom and the courthouse when this news started to make the rounds?

Feuerherd: To start the day, things were at a fever pitch, because Monday left off with Trump in the hallway basically saying, “I’ll go to jail. I’ll violate the gag order.” Then before he even arrived at court, he sent a message on Truth Social that appeared to address a witness taking the stand. I was waiting: “Could this be the day where Trump walks out in the hallway and breaks the gag order to put the ball in the judge’s court?”

All the drama on Tuesday was in the courtroom, not outside the courtroom. It was a stark difference from Monday, where the testimony was kind of dry yet important to the prosecution, but all the drama was seemingly playing outside with Trump’s comments about the gag order.

Josh, you were in the courtroom Tuesday. Can you just talk about what the reaction was among the jurors during Daniels’ testimony? You reported that at least one juror put her hand to her head and looked away. Can you talk a little bit about that, and what you saw from the whole panel of jurors?  

Gerstein: As Ben mentioned, on Monday, they seemed kind of bored. I think anybody would be by the time you’re going through the ninth, 10th or 11th monthly invoice for some kind of payment. The witnesses that they had on Monday were not the most electric ones you’re ever going to see on the witness stand. Bookkeepers and corporate controllers don’t tend to really color outside the lines, so people looked a little bit bored, which is not to say they weren’t paying attention. I’ve covered a lot of trials, and when jurors are not paying attention or actually nodding off, you see that, and that wasn’t happening, although some of them were staring around looking out at the gallery and the press corps.

As we moved into Tuesday, after Stormy Daniels had come in and taken the stand, which was a dramatic entry — not that anything that exciting or flashy happened — they were really, really focused on her, and I think the jurors understood that she’s sort of the central figure of the case, at least in the pop culture assessment of it. I’m not sure that she’s the central figure in that case legally.

She’s become a larger-than-life figure, and I think people treated her that way. The thing you’re alluding to — I think it wasn’t that people were uncomfortable through the entire testimony, but it was certain details that she shared at different points about her alleged sexual encounter with Trump that got into some of the nitty gritty that the judge later said, “You know, I think some things were probably said that didn’t need to be said.”

That was when I saw some jurors kind of cringing or smiling a little bit awkwardly — and one kind of looking away and put her hand on her forehead — so there was some discomfort with some of the more tawdry aspects. If anybody was dozing off during that particular exchange, they would have been quickly woken because there was a flurry of action back and forth, as Trump’s lawyers naturally objected to many of those things being put on the record in this trial.

What was it that exactly frustrated the judge? There were a couple of lines in Daniels’ testimony that implied that their encounter may not have been consensual, when she said she blacked out. Ironically, that testimony or that allusion is much more prejudicial against Trump than the normal defendant because he has actually sexually abused women in non-consensual ways before, so I get the judge’s concern on that front.

Gerstein: The judge didn’t really explain that, but I think going into the hearing, he had made clear that he didn’t think that there needed to be a lot of detail provided. The facts that came out — at one point, she said, “This was missionary position,” or there was a question about whether he used a condom and things like that.

Now, these are things that she has already talked about in interviews. For goodness sake, she wrote a book about it, right? So this stuff is out there, but to have her say it in Trump’s physical presence was obviously a new thing.

I think the thing you mentioned, Ankush, was a big part of it. This notion that the sex might have not been consensual.

She has been pretty clear in her previous accounts. Some people have said, “Oh, it sounds like you were date raped, or sexually assaulted by Trump.” And I know of previous interviews where Daniels said, “I’m not saying that that’s what happened.” It may have just been her nervousness and word choice going from saying, “I don’t have a clear memory of everything that happened that night” versus saying, “I blacked out,” which then you start thinking, you know, is this a Bill Cosby kind of thing?

Well, you also might start thinking, “Is it a Donald Trump thing?”

Gerstein: That’s a problem. I do also think the judge felt that while it was OK to talk about the encounter, that this really should not be a trial about that encounter. It’s not a sexual assault trial. It’s a trial about something else.

I think you can actually argue that it shouldn’t matter much for the outcome of his case whether this event happened the way Stormy Daniels described it or not, or to some extent whether it may not have happened at all. I don’t really quite see how that figures entirely into the merits of the case.

Can I offer you my own two cents on that? There is definitely a way that the prosecutors could have put on this case without having to take a position on whether this encounter actually happened, but there are several problems with that.

First, Trump has denied it repeatedly for years, and Trump’s lawyer repeated the denial in his opening statement, so if you’re the prosecutors, and this is part of the story, you absolutely have to prove that it happened, including by having the only other person in the room provide as much detail as possible to shore up their credibility.

Also, we’re hearing a lot of pro-Trump spin on Daniels’ testimony — about how it was a disaster, she was irrelevant or whatever. Trump could have preempted this witness — possibly entirely — if he just admitted that the encounter had happened. Smart criminal defenses do sometimes concede unpleasant facts in order to get the jury to focus on the material ones that might actually get the defendant off. Trump himself played an essential role in bringing her to the stand.

All that said, what is Trump doing through all of this? What is he physically doing during this very strange testimony?

Gerstein: I’ll tell you what I could see, and then Ben can chime in.

I could see that he wasn’t really looking at Daniels. The way the courtroom is constructed, it’s a little bit odd. I think it’s a bit hard to see the person in the witness box and on the witness stand from the defendant’s table, at least where Trump is sitting. The judge’s bench is kind of in the way.

There was one moment during the Tuesday proceedings where the prosecutors asked, kind of dramatically, for Daniels to identify Trump, and she had to lean around the judge’s bench and crane her neck a bit and then, you know, pointed at him. Obviously, she had seen him coming into the courtroom; she knew he was there. But she had to do that.

Trump was making a deliberate effort to not acknowledge her in the courtroom and stare straight ahead. He had the opportunity to see her because there’s a couple different TV monitors that are on the counsel table and elsewhere in the courtroom, so it’s not like he couldn’t see or hear.

And he had trouble controlling his reactions. There were different times when he started shifting around and seemed to be mumbling, and the judge eventually called him out for that, at least privately.

Feuerherd: The one main thing that I saw and that we’ve reported is that when Daniels was describing rolling up his magazine swatting him on the backside with it, Trump sort of laid back in his chair, and I saw in the feed that he mouthed, “Bullshit.”

It was later raised at sidebar. The judge talked to Todd Blanche, Trump’s attorney, and said, “Your client is audibly cursing, and that’s contemptuous, and I’m not gonna stand for it.

Meridith, this is now like the third trial in a year in which Trump’s mistreatment of women is really at the heart of the case. We had two E. Jean Carroll trials where he was found liable for sexual abuse and defamation to the tune of nearly $100 million. That was nonconsensual, so there’s a big distinction there.

But now we have Trump cheating on his wife with an adult film star. Has any of this dented Trump’s standing with women voters heading into this election?

McGraw: Trump has always had a women problem. We saw that in 2016. He made slight improvements in 2020 with women voters, but there still really is a big gender gap between Trump and President Biden when it comes to women voters. A lot of that has to do with reproductive rights and abortion, which continue to be top of mind for a lot of those more moderate women who might be trying to decide who they’re going to vote for in the upcoming election.

Some of the suburban women that Trump really has struggled with in the past, when it comes to the E. Jean Carroll case, at least among Republican voters, I don’t think it’s made a huge difference. I think a lot of them have been able to grapple with Trump and his personal issues, warts and all.

Still, when it comes to Trump’s issue with women in the upcoming election, this does not help.

You heard Hope Hicks, when she was on the witness stand, say that she didn’t think about the Stormy Daniels issue hurting with women in 2016, but she did think that it could hurt with voters after the fact. So I do think it could be one of many issues that Trump has with women in 2024.

Where is Melania in all of this? She’s been keeping a low profile, but ideally, I would think if you’re running for reelection, your wife — the former first lady — would be a prominent surrogate.

McGraw: Melania continues to be a mystery. Nobody is ever really quite sure how she spends her day. She’s incredibly private and spends a lot of time with her family. Her mother recently died, and Barron Trump is going to be heading off to college.

We’ve heard from some of her former aides about how she might be taking this. She’s probably watching all of this incredibly closely. The Stormy Daniels affair allegations really bothered her. Obviously, it came right after she gave birth to her son, Barron.

She’s probably following along with all of this. We’ve only seen her come out on the campaign trail — oh, gosh, the last public appearance she had was at a Log Cabin Republicans event, but it was incredibly small. The campaign has said that we’re going to be seeing more of her at some point, but right now, with the Stormy Daniels headlines, I’m not sure if that’s going to be anytime soon.

Does she believe that this sexual encounter with Daniels happened, or does she have the view that Daniels is making it up?

McGraw: One of her former aides said that Melania Trump is always about the proof, wanting to have ironclad proof for things. She really is a lot like her husband in that she is skeptical and dismissive of the media and critics and anybody who undermines them.

At the same time, Trump has a longstanding reputation with women that I’m sure Melania Trump is well aware of.

Kyle, the contempt proceedings were another big event this week. Trump was held in contempt again after criticizing the jurors. It’s not the first time he’s violated a gag order in one of his legal cases. Do you think he really cannot help himself? Or does he think that this is helpful to him as some sort of legal strategy or political strategy or both?

Cheney: I actually think he can help himself. It’s actually a salient point, because when he goes out into the hallway for interviews, he sort of knows where the line is and is strategic about what he says. In many of his social media posts — even the ones that crossed the line — you can sort of see at least some semblance of an effort to find the contours of the gag order and push right up to the limit.

At times, he clearly has exceeded that limit when he talks about witnesses. And some of them were reposts of others’ posts, which is kind of a novel legal issue. Even Justice Merchan has had to say that this is the first time this has ever been ruled on, but I’m ruling against you.

So I think he knows the line, and that is salient, because, as Judge Chutkan has said in D.C., he knows exactly how to restrain himself when he’s told to. The gag order actually works in that he doesn’t say things that go so far over the line, but obviously he has trouble finding exactly where that line is.

I also think that Trump — in a very deep psychological way — does not want to go to jail, even though he thinks it would be a political windfall for him. Also, personally he doesn’t want to be in prison. So I think that he’s of two minds on that, knowing what the good politics is versus his own personal well-being.

McGraw: At the psychological level, he does not want to go to jail. That’s been a fear of his, as Kyle was saying. He does these verbal gymnastics to push him right up against the edge, and the threat of jail is potent enough of a political threat that he hangs over his supporters.

Gerstein: I think he doesn’t want to go. You’ve got to remember, at least before he ran for the presidency, this is a guy whose whole brand is creature comforts. He’s the epitome of what we used to call in the 1980s “champagne wishes and caviar dreams.” He’s not someone who’s going to find himself in jail being very tolerant in those kinds of conditions when he’s used to the more gilded surroundings that he prefers at Trump Tower, down at Mar-a-Lago and so forth.

Cheney: He wants everyone to think that he’s willing to go to jail.

Gerstein: I totally agree with Kyle. He revels in his tough guy image — you know, “This isn’t about me, this is about you, and if I have to take one for the country, I’m going to do that.”

Cheney: Right before we jumped on here, he posted something saying “give me liberty or give me death” in the context of his gag order, his willingness to defend free speech. He certainly wants the impression out there even though I think he would fight tooth and nail to stay out of prison.

Gerstein: The other thing I would say on that is that we can all think of things he could say that would violate the gag order and land him in jail. As Kyle has been alluding to, he hasn’t said those things yet. That makes me doubt that he’s someone who’s actually eager to spend time behind bars to become a martyr for his cause.

McGraw: He’s a notorious germophobe, too.

Cheney: That’s the psychological part. Exactly.

There’s no hair and makeup in jail, either.

McGraw: No hair and makeup. He can’t control it.

Cheney: Has to wear a jumpsuit.

Gerstein: The coiffe was a little off, by the way, in court this week, since I had a lot of time to look at the back of his head. There was an over-extension on the left side that just was not symmetrical, and I was surprised that that went on for so long.

Feuerherd: We gave him every opportunity to break the gag order — questions that, had he responded to them, arguably he would have broken the gag order. He steered clear of every one of those, but then at the end of the day, he said, “I’m ready to go to jail for the Constitution,” and yet did not respond to any questions that could have broken the gag order.

You know how I know he doesn’t want to go to jail? Josh is right, but a much more simple and efficient way to go to jail if he really meant it would just be to repost the Truth Social posts that got him held in contempt the first time. That’d be quick, easy and clearly in violation of the gag order, and the judge would be angry and would send him to jail. Trump isn’t doing that, which is why I know he doesn’t actually want to go to jail, at least not now.

Ben, we’re about halfway through the trial. You have been there every day. Can you talk about where you have seen successes for the prosecution and also for the defense?

Feuerherd: The high point for the prosecution probably would have been [former National Enquirer publisher] David Pecker, just laying this foundation for this conspiracy that they allege in a very clear, concise way, discussing meetings in Trump Tower with Michael Cohen and Trump and then walking jurors through the end result of that, which was AMI entering into a non-prosecution agreement that said they broke campaign finance laws. He said, “I thought I was working for the campaign, not to protect Donald Trump’s name.”

You can make an argument that, for the defense, Hope Hicks painted Trump in a favorable light. She arguably scored some points for prosecutors, but also tried to protect Trump, dirtied Michael Cohen a little bit.

Cheney: That speaks to this this [Harvey] Weinstein issue. His conviction was overturned in part because there was extraneous stuff that was introduced that was prejudicial to the case. There’s certainly not a parallel between these two cases, but you could see the contours of a similar argument here — that it was all this really prejudicial stuff that came in that had nothing to do with the underlying charges. Trump’s at least going to make a run at that if he is convicted.

Meredith, let’s talk about the political theater in the courtroom.

Ken Paxton showed up even though he has a full time job in Texas as attorney general. We’ve also had these political people who weren’t there initially but have shown up in the last week or two — Susie Wiles, Boris Epshteyn, Natalie Harp. What should we make of the fact that these political allies are showing up? Are they there to give him an ego boost?

McGraw: I will say with Ken Paxton, he has shown up at all sorts of different Trump events I’ve been at. I think he is often very eager to show Trump just how loyal and with him he is. I have no doubt that that was the calculation with him.

The other names that you just gave — Susie Wiles, Boris, Natalie Harp, that’s really Trump’s inner circle. These are his top advisers — people who spend a lot of time with him every day — and this trial is a big part of his campaign message. They obviously don’t love the fact that Trump is spending all of his time in court and that this is what people are talking about in the election, but they’ve still tried to say that they’re making lemonade out of lemons with this and really trying to push this as part of their argument that Trump is somehow unfairly targeted.

But there is, of course, just an awareness that this is where we’re at in 2024. This is what the cards are that they’re having to deal with. Politically, they’re having to make this part of their case, whether they want to or not.

Cheney: I actually think that it’s a little surprising there haven’t been more people showing up like Ken Paxton. I think Marjorie Taylor Greene showed up for some of the pretrial stuff.

Trump values loyalty maybe as his No. 1 attribute, and there’s no better way to show your loyalty than to stand with him in this moment. And yet, as I said, the people who are there — there’s his campaign apparatus, there’s his message apparatus, they would be expected to be with him anyway. It took a while even before his own family members showed up.

Meridith, is this trial taking a personal toll on Trump? To my eyes, it does look like he’s a little slumped down in his appearances, even when he’s in front of a camera — not just the pictures and the reporting from within the courtroom.

McGraw: This is — especially Daniels’ testimony — it’s just been embarrassing for him to have all of these personal details out there even though he’s denied it.

I’m sure these are humiliating details to have talked about every day on the news. His people close to him have said that this is a kind of punishment for him in and of itself — that he obviously is not enjoying any of this. They’ve tried to make a political spectacle out of it, and they’ve tried to have these political events on the sidelines. He’s had sort of spirit-boosting events back at Mar-a-Lago where he’s been surrounded by allies, like when he was at Ronny Jackson’s birthday party this weekend.

But being in trial, day after day, I’m sure is grueling and taxing. And you see, like you said, physically how it’s impacted him.