[UPDATE: I read this article today by a former federal prosecutor that also makes the point that lying about his liaisons with Daniels and McDougal was a bad strategy.

But it’s also clear that Trump’s lawyers are pursuing a flawed and risky strategy. Why? Most likely it’s not them, but him. Trump is the client, and he gets the final word on major decisions. So far as I can tell, this team has managed to stay on Trump’s good side by indulging — perhaps necessarily — his worst traits and instincts. It may be their downfall.

Most devastatingly, lead attorney Todd Blanche, in his opening statement, repeated Trump’s claim that he never had a sexual encounter with Stormy Daniels. That was followed by days of testimony last week that — if you believe Daniels’ very persuasive account — effectively demonstrated that a central plank of Trump’s defense is a lie and has been a lie for years, and that the jury cannot trust even Trump’s lead counsel to tell them the truth.

A bunch of Trump-supporting legal commentators have claimed that Daniels’ testimony was irrelevant to the case — a truly baffling interpretation of events given what actually happened. Prosecutors had no choice but to put Daniels on after Blanche affirmatively called her a liar in his opening statement, and they had to elicit considerable detail about the sexual encounter in order to establish her credibility in response to Blanche’s attack inside the courtroom and Trump’s years of attacks outside of it. Not only was that the appropriate way for the government to defend the integrity of its investigation and its witness, it was also an unmissable opportunity for them to tank the credibility of Trump’s entire legal defense.

But the author does not speculate as to the motive behind this poor choice of strategy.]

We are in the fourth week of the trial of serial sex abuser Donald Trump (SSAT) and it has been as tawdry as expected. The main (but not only) charge is that SSAT falsified business records to claim that $130,000 given to his former fixer Michael Cohen was a retainer for legal services when it was actually reimbursements to Cohen for payments made to suppress damaging information emerging just before the 2016 election. The latter reason would constitute an illegal campaign contribution. The statement issued by Manhattan DA Alvin Bragg when the indictments were first announced in April 2023 has the following:

In one instance, American Media Inc. (“AMI”), paid $30,000 to a former Trump Tower doorman, who claimed to have a story about a child TRUMP had out of wedlock.  

In a second instance, AMI paid $150,000 to a woman who alleged she had a sexual relationship with TRUMP. When TRUMP explicitly directed a lawyer who then worked for the Trump Organization as TRUMP’s Special Counsel (“Special Counsel”) to reimburse AMI in cash, the Special Counsel indicated to TRUMP that the payment should be made via a shell company and not by cash. AMI ultimately declined to accept reimbursement after consulting their counsel. AMI, which later admitted its conduct was unlawful in an agreement with federal prosecutors, made false entries in its business records concerning the true purpose of the $150,000 payment. 

In a third instance – 12 days before the presidential general election – the Special Counsel wired $130,000 to an attorney for an adult film actress. The Special Counsel, who has since pleaded guilty and served time in prison for making the illegal campaign contribution, made the payment through a shell corporation funded through a bank in Manhattan.

Paying money to someone to keep quiet about a sexual encounter is not illegal. What is illegal is falsifying business records and doing it to influence an election outcome.

One thing that puzzles me is SSAT’s defense that the encounter with Stormy Daniels never happened. That creates two problems for him. He now has to explain why he made the payments at all. The other is that by accusing her of lying, it opened the door for the prosecution to bring in Daniels as a witness to testify to the details of the encounters she had with him, though thankfully we were spared descriptions about his genitalia. The other woman that is involved is Karen McDougal and she may also be called to testify later. Unlike with Daniels where it seems to have been a single occasion in which they had sex, McDouglas claims that she had an extended affair with SSAT.

I suspect that few people doubt that SSAT had sexual encounters with Daniels and McDougal. I also doubt that it will damage him with his MAGA cult followers and may possibly raise him in the esteem of some of them. So why deny it? Daniels’s testimony and the corroborating evidence makes that lie hard to sustain. We still have to see if McDougal testifies and how credible she is on the stand. It would have been more plausible for SSAT to admit the liaisons but that the payments were meant to keep the information from his wife. The jury might well have believed that. But saying that nothing happened is a much harder sell and opens him up to having all the lurid details laid out in open court to contradict his claim. If, as seems likely, the jury concludes that he is lying about these two women, that makes it easier for them to conclude that he is lying about all other things as well, making it easier to convict.

If I had to hazard a guess as to his motivation for denying what seems to be undeniable, I think it is because he is scared of what would happen with his wife Melania. It is not uncommon in marriages for a wife to tolerate occasional infidelity by her husband as long as it is kept on the down low. She can then pretend to her friends and relatives that it is not happening and they can sustain the fiction that she does not know and the whole topic can be avoided. But if his liaisons are openly acknowledged, then she has to deal with the question of why she continues to stay in a marriage with someone who repeatedly cheats on her.

So perhaps that is why SSAT felt that he had to make these denials. Admitting it would risk forcing Melania to decide to leave him, which would be politically damaging. It may also be financially damaging, depending on what their pre-nuptial agreement says. She would probably get a hefty financial settlement in return for not criticizing him in public.

Of course, all this is pure speculation on my part. Trying to fathom SSAT’s logic is also fraught with difficulty. But I cannot see any other good reason for him to deny his affairs.