74/ McB:

We have been told repeatedly by witnesses—even in the courtroom, even on the stand—about their fear, Conroy says. Even with a witness today, there was something with her home address on it, and you could see the fear in her eyes.

He does it selfishly with no concern about the safety of the people he's attacking, and unfortunately we have seen the results, Conroy says.

75/ McB:

Conroy brings up the NYPD's explosion in threat cases about the number of threats against the members of the DA's office and their families. I had a conversation with a
👉🏼custodial witness last night concerned about their safety, Conroy says.👈🏼
Modifying this gag order now in the middle of trial would signal to future witnesses that they could be at risk as well, says Conroy.

76/ McB:

He cites a DC circuit case about "hostile messages" that have an effect of "deterring, chilling, or altering the involvement" of witnesses.

77 McB:

The gag order is not just designed to protect the witness until they walkoff the stand, or to protect the proceedings part of the way, Conroy says.
Modifying the gag order now is for Trump to attack Daniels—that's what he wants to do,👉🏼let's not pretend he wants to engage in high-minded discourse, 👈🏼Conroy says.

78/ McB:

Blanche is back now, and he says everything we just heard in different in kind from what they're requesting.

In this case, a narrowly tailored gag order, the court should be constantly making sure its terms remain in effect, Blanche says.

79/ McB:

A completely different set of events, Merchan repeats, What exactly are you referring to?

For example, transcript pg 2610, Blanche cites, "at first I was just startled, jump-scare...room spin in slow motion...felt the blood leave my hands and my feet."

80/ McB:

What she had previously said, Blanche says, hinting that he's now getting to the mistrial motion, was "ugh, here we go, we started kissing, I hope he doesn't try to pay me."

👉🏼Merchan: Help me understand how it's different.
Blanche: One is about consent, and one is not.

81/ McB:

Merchan wants to take the issues one-by-one so we stay on the gag order

👉🏼It's interesting what Mr Conroy said, bc I wrote the same thing from the book down, Merchan says. My concern is protecting the integrity of these proceedings as a whole

Other witnesses, incl but not only Michael Cohen, will see your client doing whatever he intends to do, Merchan says. 👉🏼I can't take your word for it that this is going to be low key, this is going to be a response, bc that's not the track record

82/ McB:

These were very real, very threatening attacks on witnesses, so 👉🏼I can't take your word for it, Merchan says, while saying he is still concerned by some witnesses using the gag order as a sword, not a shield.

#WompWomp

Application to modify gag order is DENIED.

83/ McB:

Merchan will now hear motion for a mistrial.

Blanche starts by saying he will put something together over the weekend explaining why this trial cannot go forward in light of Daniels' testimony.

Blanche cites Merchan's finding that Daniels' testimony not only completes the narrative of events, but is also probative of the defendant's intent, but says he alerted the court and the government of Daniels' contradicting previous claims.

84/ McB:

Blanche says this new story is about how "this completely made up encounter with President Trump may have been nonconsensual," which they learned from the documentary, at which point they previously objected. Prosecution and court promised not to get into the details, then did.

85/ McB:

Questions about whether the encounter brought up Daniels' difficult childhood, Daniels spanking Trump, it almost defies belief that we're here about a records case and the government is asking questions about an incident that happened in 2006, that we don't even believe happened

86/ Emptywheel:

Blanche now complaining that Blanche opened by denying the sex happened.

Klasfeld:

Blanche calls the level of detail irrelevant:

"This is not a case about sex."

It's not about whether the sex took place or didn't take place, he adds.

87/ McB:

Blanche continues, This is extremely prejudicial testimony. This is not a case about sex. This is not about whether that encounter took place or didn't take place. Whether it happened or not has nothing to do with the charges in this case.

88/ Bower:

Blanche mentions, for example, the prosecution asking about Daniels supposedly spanking Trump with a magazine. And he says they elicited too much detail about the hotel suite -- what the inside of the bathroom in Trump's suite looked like, for example.

And the story Daniels told on the stand is not the story that Rodriguez, Howard, and Cohen were told back when the NDA was formed. So it's not relevant, Blanche insists.

89/ McB:

Blanche reads more of Daniels' testimony, calling it "extremely prejudicial" again, and testimony that has nothing to do with the motive of entering the NDA.

Klasfeld:

Blanche recites the passage of the transcript where Daniels quoted Trump trying to talk her into sex by telling her "[i]f you ever want to get out of that trailer park."

90/ Klasfeld:

Blanche, with some indignation: "You have jurors who are now hearing about an imbalance of power between a man and a woman."

He says that isn't relevant to the case.

91/ Bower adds a little more:

She talked about power imbalance, Blanche says, but none of that goes to motive or intent because that's not what she was saying at the time of the NDA.

92/ McB:

We didn't know these q's were coming, Blanche cont's. We had a sense from documentary that she was changing her story, & we alerted the court, but we were hearing this for 1st time.

He's repeating himself, but Merchan lets him continue.

"There was an objection, and it was sustained," Merchan cuts in. "In fact after many of these anecdotes, there was an objection and it was sustained."

But it was still said, Blanche pleads, that's why this testimony is so dangerous, so prejudicial.

93/ McB:

"It was so prejudicial—it was a dog whistle for rape," Blanche says. [Me: Rape. Gee. Ya think?]

Let's hear from the people, Merchan says.

👉🏼"Ok so that was a lot, and most of it, just flat out untrue," Steinglass says.

94/ McB:

The claim of ambush is just nonsense, says Steinglass. The claim of changing the story is also extraordinarily untrue. As any witness telling a story, there are details in one form and not in another form. And anyway, the defense has had access to all of this.

95/ McB:

Moving on to the mistrial motion, Steinglass says, it has always been their contention that the details of the two-hour convo that Daniels and Trump had in the hotel suite corroborate her account that a) the fact that the sex happens (which increases motivation to silence her)...

96/ McB:

These are the details that make her account more credible, and the defense has gone to great length to discredit her, Steinglass says with some force, some oomph in his voice.

97/ McB:

They're trying to have their cake and eat it too. They're trying to discredit Daniels that her story is false, then preclude the prosecution from eliciting the details that would corroborate her story, Steinglass says.

98/ Press:

Prosecutor: The claim of ambush is nonsense. OK there were details omitted from InTouch, but in Anderson Cooper. This is not a change of story. Ms. Necheles' thorough but misleading cross tested it. That the sex happened increases the motivation to silence her

99/ McB:

Necheles was cherry-picking the details she thought were inconsistent and omitting the details that were consistent, Steinglass says. The overarching point here is the details are the tools the jury needs to assess her credibility.

100/ McB:

👉🏼Those messy details were Trump's motive to silence this woman in 2016, less than a month before the election👈🏼, says Steinglass. The fact that the testimony is prejudicial and messy, according to Blanche, that's exactly why Trump tried to prevent the American ppl from hearing it.

There were lots of details about a lot of things, but not about the actual encounter. By Steinglass counts, there were only 8 questions about it.

101/ McB:

There are other details I don't want to put on the record, but I'm happy to put in a sealed record the very salacious details we omitted out of a desire not to embarrass the defendant, Steinglass says.

102/ Klasfeld:

Steinglass defends eliciting testimony about the spank.

If prosecutors didn't do that, the defense would have invoked it to undermine her testimony that she was surprised when the encounter turned sexual.

Steinglass turns to the detail about the condom:

That relates to Daniels' earlier testimony about strict safety measures in the pornographic film industry, another corroborating detail, he says.

Steinglass, emphatically and loudly:

"Those messy details: That is MOTIVE."

103/ Klasfeld:

Steinglass says he's happy to make a sealed record of more salacious details that are "highly corroborate," yet not put into the record, so as to "avoid embarrassing the defendant."

104/ Press:

Prosecutor: We went out of our way to avoid some of the salacious details, to not embarrass the defendant with the details of the sexual act. At one point she was asked did you feel anything difference. She was going to say, I felt the skin of a 60 year old man

Prosecutor: We could put in an exparte submission of more embarrassing details we omitted, to not embarrass the defendant. Ms McDouglas was on our witness list but we never said we intended to call her

105/ lol

Emptywheel:

🍿🍿🍿

Please force Steinglass to make this a judicial record, Todd Blanche. I beg of you.

Adam Klasfeld:

Steinglass says he's happy to make a sealed record of more salacious details that are "highly corroborative," yet not put into the record, so as to "avoid embarrassing the defendant."

106/ McB:

"Please have a seat so I can render my decision," Merchan says to Blanche, who had stood up to argue.

Merchan says he went back to his previous decisions side-by-side with the transcript to make sure that everyone had followed his guidelines.

107/ Klasfeld:

Judge:

Mr. Blanche, you denied that there was a sexual encounter between Stormy Daniels and the defendant.

108/ Klasfeld:

Merchan notes that Blanche made that remark in opening statement, leaving a controversy for the jury about whom to believe.

McB:

Your denial puts the jury in a decision of choosing who they believe: Donald Trump or Stormy Daniels. Prosecution doesn't have to prove a sexual encounter occured, they have a right to rehabilitate Daniels' credibility, which was immediately attacked in Blanches opening statement

109/ McB:

Merchan sua sponte (of his own accord) objected to the trailer park comment, and struck it from the record.

Following the court's own objection, Merchan notes, Necheles began to object with some frequency, and virtually all were sustained.

110/ Klasfeld:

Justice Merchan notes that Trump's lawyer didn't object to objectionable remarks multiple times:

"There were many times, not once or twice, when Ms. Necheles could have objected, but didn't."

111/ McB:

On the blacking out comment, for some reason, I don't know why, you went into it ad nauseam on cross-examination, Merchan says, drilling it into the jury's ears over and over.

Bower:

What's more, the witness immediately said that there was no coercive force and that she didn't feel threatened. And Necheles elicited that same testimony over and over again on cross, he observes.

112/ Klasfeld:

Merchan notes that, at a sidebar conference, prosecutors wanted to bring in a 2019 documentary about Roger Ailes called "Bombshell," addressing the sexual harassment scandal.

The judge immediately ruled he wouldn't let that in.

"I did that to protect your client," he says.

113/ Bower:

I agree the detail about the condom should not have come out, Justice Merchan says. But "for the life of me" I don't know why Ms. Necheles didn't object.

Yikes.

What's more, the witness immediately said that there was no coercive force and that she didn't feel threatened. And Necheles elicited that same testimony over and over again on cross, he observes.