The March 9 transcript of the denial is now up. I criticized the denial on two grounds: First, and foundationally, that the lawyers' opening statements are not evidence. Second, and despite the first, Justice Merchan based his denial on Todd Blanche's opening statement. I re-read Blanche's entire opening (April 22) last night and was horrified, again despite the first above, that I saw no mention whatsoever by Blanche denying that sex had occurred. I now have Justice Merchan's ruling from yesterday. He is very specific:
Last night I posted snips of pages 905 and 906. Not 897. Here is what Blanche said on that page:
There it is in black and white and I missed it: "false claim of a sexual encounter". I make confession and voluntarily submit to struggle session.
In an abundance of embarrassment over 897, and of completeness, I snip the entirety of pages 905 and 906:
There is nothing there. There is still no mention of sex on pp 905 and 906.
Blanche's opening was 21 pages long, 525 enumerated lines of transcript. There is a fragment of one sentence, the money shot (I'm sorry, I couldn't resist.), 20 words long, taking up two of the 525 lines, where Blanche denies the sex.
He did say it though, once, but he said it, and that denial had to come from one person, the defendant Trump. Blanche wasn't there. There were only two witnesses, Trump and Daniels. It has to be taken as a statement from the defendant through the medium of his lawyer, a way of testifying while not being subject to cross-examination. Justice Merchan's denial of the motion for mistrial rests on those 20 words that could only have come from the defendant, on two lines in a statement to the jury by one of Trump's lawyers that Justice Merchan had just told the jury is not evidence. If Trump does not testify, that statement to the jury is out there and he doesn't own it.
I can see the basis for Merchan's ruling. It's not evidence, the government does not have to prove the sex as it is not an element of any of the crimes charged, but the sex is probative of the government's theory on Trump's intent, intent is an element the government must prove; the motive (not the same as intent, but close) for the hush money payment is relevant to the defendant's intent to commit election fraud.
Is that one denial, effectively the defendant’s testimony, enough to justify Justice Merchan permitting hours and hours and days of testimony over the details of the encounter, not the sex, the Schiller advance, the phone number, Schiller’s entree of Daniels into the Trump suite, the bathrobe, the spanking. It is “salacious”—but it could have been worse for Trump. The prosecution theoretically could have done a dick lineup, had Trump display his penis to see if it matched Daniels description of “mushroom shaped”.
And the defense deserves the blame that Justice Merchan leveled on them. Blanche deliberately, sleazily tried to slip Trump's testimony by everyone in the courtroom. In real time I advocated that the cross by Necheles should be, and predicted it would be, brief: get in, get out, slam, bam, thank you, ma’am. George Conway concurred. But Necheles went after Daniels full bore: "You made it all up, didn't you?" The cross was a long necheles that became a noose.
Merchan took a risk in admitting so much, but it was a risk born not of exasperation, although he does not trust the defense, with reason, but grounded on that one defense statement. Merchan was incorrect on pp 905-906, but 897 is his linchpin. I can see why he ruled as he did. And, although I am uncertain, I find his evidentiary rulings and denial of the mistrial to be with reason and based in law.
The appellate courts will take hard looks at this but I was wrong to say that if a conviction occurs, the case "will come screaming back."
I am an ox demon and a snake spirit.
