The Weekend Wrap: May 12, 2024

"Sit down!!"

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

New York State Case - Hush Money/False Business Records

Week three of trial testimony is in the books. The two key witnesses this week were Stormy Daniels and Jeffrey McConney, the Trump Organization controller.

Stormy Daniels: When I was in law school, students studying trial advocacy would watch a series of videotaped lectures by professor Irving Younger called “The Ten Commandments of Cross-Examination.” It’s a classic series. You can still find the lectures today. If you ask any trial lawyer you know, chances are they have watched or at least heard of these lectures.

Younger’s commandments included rules such as: ask leading questions, listen to the answers, don’t argue with the witness, and the like. He was a very animated and entertaining lecturer. He would regularly conclude his discussion of how to handle a certain task by bellowing: “and then - SIT DOWN!!” He was trying to drive home the point that most cross-examinations go on too long and end up hurting you rather than helping you. The most effective ones are quick and concise. Get in and get out. Try to score a few key points — and then sit down and save the rest for closing argument.

Stormy Daniels (credit: Gabe Ginsberg/Getty images)

I found myself thinking about those lectures again during the defense cross of Stormy Daniels. By now you’ve heard plenty of reports about how Daniels testified to the rather icky details of her encounter with Trump in his hotel room in 2006. She concluded her direct testimony on Tuesday and the defense began cross-examination. It seemed like Trump attorney Susan Necheles scored some points that afternoon, pointing out some inconsistencies in Daniels’s account.

Necheles should have just sat down after Tuesday. Instead, she came back for several more hours of cross on Thursday morning. Maybe her client insisted that Necheles go after Daniels more aggressively, but it did not go well. Daniels was more composed and less nervous, and was combative on the stand. The longer the cross went on, the better she came across.

Daniels got in some real zingers. When Necheles suggested that Daniels was seeking the spotlight and just wanted to say publicly that she had sex with Trump, Daniels responded, “Nobody would ever want to publicly say that.” When Necheles suggested that Daniels was used to making up fake stories about sex, she responded, “If that story [about Trump] was untrue, I would have written it to be a lot better.” By the time it was over, I think the jury likely found Daniels credible and also felt a bit sorry for her. And I’m not sure there was a single one of Younger’s commandments that Necheles hadn’t violated.

The thing about Daniels is this: it doesn’t really matter, legally, whether she had sex with Trump or not. Even if she made the whole thing up, the Trump campaign was willing to pay to keep her from telling the story. The false business record charges in this case don’t depend on whether or not Daniels is telling the truth. There was no reason to go at her so hard - other than perhaps to appease the client.

All the defense needed to do was raise a few questions about Daniels’s credibility and establish that she doesn’t know anything about Trump’s role in creating any false business records — and then sit down.

Commandment #11: If your cross isn’t helping you, it’s hurting you.

Jeffrey McConney: McConney was the controller at the Trump Organization and worked closely with the CFO Alan Weisselberg. He provided some critical testimony concerning the scheme to reimburse Michael Cohen for the Stormy Daniels hush money payment.