What Stormy Daniels told the Trump trial

Sam Hawley: It was a porn star versus a former president. Donald Trump often kept his eyes closed as Stormy Daniels took to the stand to outline in graphic detail the sexual encounter she says she had with the former president in 2006 and the subsequent hush money she was given to keep it quiet. Trump denies they had sex at all. Today, the senior legal affairs reporter for Politico, Josh Gerstein, takes us through the evidence heard in a New York courtroom. I'm Sam Hawley on Gadigal land in Sydney. This is ABC News Daily.

Josh, thanks so much for joining us because you've been in the courtroom in New York today, which has been absolutely fascinating. You've had a really long day and you're just in the car, aren't you, on the way back to your hotel?

Josh Gerstein: Yeah, that's exactly right. I spent all day in the courtroom as this testimony was unfolding. Probably the most dramatic day, I think, of this multi-week trial of former President Trump.

News Report: It was an alleged encounter in a hotel room that put Stormy Daniels at the centre of the first ever criminal trial of a former US president.

Sam Hawley: Stormy Daniels, she's a key part of these hush money allegations, of course, against Donald Trump. So when she appeared in court, it was a big moment, wasn't it?

Josh Gerstein: Oh yeah, it was a riveting moment, no question about it. This porn star who's made these allegations against a former president, it just doesn't get much bigger than that.

News Report: In court, she described meeting Donald Trump in Lake Tahoe, providing lurid details like the satin pyjamas he wore and how she spanked him with a magazine before they had sex.

Josh Gerstein: This was the moment of the trial that I think more people were waiting for than any other.

Sam Hawley: Yeah, of course. And Donald Trump, he did speak outside the court. He says this is all a hoax against him, it's just getting in the way of his campaigning.

Donald Trump, former US president: So this was a very big day, a very revealing day. As you see, their case is totally falling apart. It's a disgrace. In the meantime, I'm stuck. I'm here. Instead of being in Georgia and all the different states that we wanted to be in, we're not able to be there because we're stuck in this trial, which everyone knows is a hoax. Thank you very much.

Sam Hawley: Josh, take me into the courtroom where Stormy Daniels, she takes to the stand. How does it all start out?

Josh Gerstein: Well, it starts out with the prosecutor who was questioning her, in my view, trying to humanise her and make her a little bit more of a three-dimensional figure. And the purpose of the initial questioning here, the first 10 or 15 minutes she was on the stand, was to sort of lead her through her family history, but also to try to explain some things she has done in her life other than be an adult film actress, to talk about her achievements in high school, to talk about her work, for example, with horses and her intense interest in equestrian-type activities, things along those lines that make her sound less exotic and perhaps a little bit more relatable for the every man and every woman that are on the jury of 12 people here in Manhattan.

Sam Hawley: And her testimony lasts for a really long time, doesn't it? Something like five hours.

Josh Gerstein: Right. Well, her direct testimony from the prosecutors went for maybe around three hours, and then she spent another hour, hour and a half, two hours under cross-examination by one of Trump's defence lawyers. And I will say at the outset, her testimony was extremely formidable. Her recall of these events involving Trump, you know, they allegedly took place 18 years ago, and just sort of an encyclopaedic memory of things that far in the past down to, you know, details like the tile on the floor in the hotel room that Trump was in or the flowers that were sitting on a table by the door. Just a really impressive level of recall.

Sam Hawley: And then, of course, she does get to the detail of the sexual encounter she says had with Donald Trump in 2006. So tell me about that.

Josh Gerstein: Well, you know, this was something that I think made a lot of people in the courtroom uncomfortable, the level of detail with which it was recounted. This is a story that she has told publicly on several occasions now. And in fact, she's written a book about. But still some of the things that she brought up and some of the way in which she phrased the way in which she ended up in this sexual encounter she alleges with Trump, I think, were unusually provocative compared with some of her past accounts. She talked about having gone in the bathroom, coming out and finding him in his boxer shorts on a bed and wondering how she had got there. Those were all things she had said before. But she also said she didn't have a clear memory of parts of the encounter. And she used the phrase blacked out, which, you know, really provoked a series of objections from Trump's lawyers who said that they thought she was implying that perhaps he drugged her or forced himself on her in some way, when in past accounts, she's been very explicit that she's not alleging that Trump raped her or used any kind of physical force or threats against her during this encounter back in 2006.

Sam Hawley: And that was a point that Trump's lawyers really were calling for a mistrial, right? They really were not happy with that testimony.

Josh Gerstein: Yeah, they thought that that really infected the case. They sort of said things like, well, you know, what, how are we supposed to defend this? It's impossible to defend now. And they also made a point which I don't think is invalid that the details of the encounter and even if something more extreme had happened, that's really not what this case is about. The case is really about the payments that were made to her, whether Trump knew about them, and whether they were intended to advance his candidacy and therefore violated campaign finance law. That's pretty distant from whether these facts that she alleged took place in exactly the way she said it did. You know, you in fact could say Trump could be guilty of the crime here that he's charged with or the crimes he's charged with, even if completely fabricated this encounter, because he's really charged with the cover up, if you will, not whatever he did with her 18 years ago or didn't do.

Sam Hawley: Let's delve into those charges a bit more in a minute. But just tell me, because Donald Trump, he's sitting in the courtroom, of course, through all of this. So how is he reacting?

Josh Gerstein: So he, I was in the courtroom and he's seated in a way and Daniels were seated in a way where they couldn't directly see each other while she was testifying. He was just around the corner from where the judge was sitting. And so at one point when she was asked to identify him, she kind of craned her neck and pointed at him by looking around the corner. He pretty much didn't look in her direction and looked straight ahead. But he was certainly listening and he could see her on at least one, if not more of the video monitors in the courtroom. And in fact, you know, we know he was paying attention because at one point we could hear him mutter and expletive in response to something she had said about having essentially spanked him with a magazine before their encounter there on the bed that she described from the 2006 hotel room. So while he was present, he was sort of grimacing the whole time and he was clearly pretty unhappy with his testimony.

Sam Hawley: So these allegations against Donald Trump is that he actually falsified his accounts to cover up a payment to Stormy Daniels to basically keep her quiet. And the prosecution says it was all part of a scheme to influence the outcome of the 2016 election.

Josh Gerstein: Right. So Daniels had discussed versions of this account with various people over a long period of time, almost 15 years, something like that, I would say 10 years. And, you know, as the election neared in 2016, some of the people she had discussed it with had talked to reporters and other people who were snooping around about it. Parts of the story seemed on the verge of coming out. And there was an effort by Trump's lawyer, sometimes referred to as a fixer, Michael Cohen, to try to contain that account by essentially entering into a non-disclosure agreement with Daniels where she would not discuss anything about her alleged relationship with Trump in exchange for $130,000. And prosecutors say that, you know, while it might not be improper for him to have paid that if he wasn't, or illegal for him to have paid that, if he wasn't running for president, the timing of all this in the days just before the 2016 election made it essentially a donation to the campaign, a campaign expenditure that should have been publicly reported and that Trump evaded those requirements, conspiring with Cohen to describe this as, you know, legal expenses on the books of the Trump company, even though it was paid from private Trump accounts. And essentially to keep all this under wraps that way so that this story would not emerge as Trump was trying to win the presidency back in 2016, which he managed to do. And this story pretty much remained contained until well after that election.

Sam Hawley: All right. So, Josh, there's a lot of salacious details in this case, and there's been quite a bit of evidence before Stormy Daniels, of course, took to the stand. But a lot of this, as I think you've written, just hinges on really boring details on documents and financial records, doesn't it?

Josh Gerstein: Right. I mean, the charges here are sort of very pedestrian. It's that somebody made basically false entries in the books of their company. And that's a misdemeanour under New York state law. However, if you do it to cover up another crime of some type, then it is elevated to a felony. And that's really the main legal risk for Trump here, besides the embarrassment and the political damage that this trial is doing. If he's convicted of these felonies, there's a possibility that he will go to prison. And so the most important thing, I think, for Trump's defence is to try to suggest that maybe this money was paid simply to keep this quiet because it was the kind of embarrassing allegation, whether true or not, that Trump wouldn't want out at all. It's simply the timing of the payments that makes it seem like it did probably have something to do with the election taking place just a few days later, since we're talking about an allegation that was from a decade earlier.

Sam Hawley: All right. Well, this has a while, of course, to play out. But the judge is really losing patience with the former president, isn't he?

Josh Gerstein: Yeah. The judge has warned the president several times. Trump continues to make comments about witnesses and even to make comments about the jury being politically biased against him.

Donald Trump, former US president: There's no crime. I have a crooked judge. He's a totally conflicted judge. And I come, you know, it is unfortunately it's a 95 percent or so Democrat area. Other than that, things are wonderful.

Josh Gerstein: Despite this court order telling him not to do that, so far, the judge has found 10 counts of criminal contempt against Trump and imposed a thousand dollar fine on each of these occasions. But there's still the possibility that if Trump continues to defy this gag order, he could be thrown in jail for contempt of court, something the judge has said he doesn't want to do, but he will do if he thinks it's necessary to assure the sanctity of the proceeding.

Sam Hawley: Well, we know, of course, that Trump is running again for the presidency and he's the first former president to face a criminal trial. So just tell me, Josh, how is this actually playing out with American voters? What do they make of this?

Josh Gerstein: Right. So this is one of the big questions out of the trial. Trump is actually facing four different kinds of criminal cases. Many people think this is the least significant of those four, but it may be the only one that actually gets to trial before the election. There is some polling data suggesting that some Trump supporters would break off and would not vote for him if he is convicted of a serious crime. It's unclear sort of how many people are in that category. It's unclear whether they would consider these offenses to be serious enough to stop supporting him. There's also the sense of, you know, are voters necessarily able to tell you how they will react in the future to something that hasn't quite happened yet? I do think there is a chance simply with these stories being in the headlines that while it causes Trump's sort of core supporters to rally behind him, you do wonder if some of the supporters that are a little bit of what we might call softer supporters of Trump may be reminded of some of the more tawdry, unpleasant and scandalous aspects of his character and of his presidency. And maybe there is a bit of a sense there that they don't want to revisit that era. But I think it's very hard to know that until at least one of these cases plays to its conclusion.

Sam Hawley: Josh Gerstein is the senior legal affairs reporter for Politico. This episode was produced by Bridget Fitzgerald and Nell Whitehead with audio production by Sam Dunn. Our supervising producer is David Coady. I'm Sam Hawley. Thanks for listening.