As Donald Trump’s presidential victory became clearer and clearer on election night in 2016, an attorney who brokered hush-money payments to bury the then candidate’s alleged sexual liaisons seemed shocked that his efforts had worked, texting his longtime confidant: “What have we done?”
So went the second day of testimony from Keith Davidson – who represented alleged Trump paramours Stormy Daniels and Karen McDougal – in the ex-president’s criminal trial. The friend in question was Dylan Howard, then the editor of the National Enquirer. Prosecutors allege that the tabloid veteran kept Trump’s lawyer at the time, Michael Cohen, apprised of damaging information about his boss.
Davidson described the phrasing as “gallows humor” about the fact that “our activities may have in some way assisted the presidential campaign of Donald Trump”.
Howard responded to the text message with: “Oh my God.”
Manhattan state prosecutors allege that Cohen paid off Daniels to keep her quiet, and coordinated a payment to McDougal through the National Enquirer’s parent company, American Media Inc, to help Trump’s chances in the election. Trump is on trial in New York for falsification of business records over allegedly listing repayments to Cohen as legal expenses in company documents.
Prosecutors on Thursday also played an audio recording of a phone conversation between Trump and Cohen from September 2016 discussing the plan to keep McDougal quiet. “I need to open up a company for the transfer of all of that info regarding our friend David,” Cohen tells Trump on the tape that Cohen secretly made, seemingly referring to National Enquirer boss David Pecker.
That recording has been out in the public since 2018, but the jury heard it for the first time Thursday. The tape appears to make clear Trump knew about the hush-money plot.
In addition to being a firsthand account of the purported payoff scheme, Davidson’s time on the stand served to corroborate expected testimony of Cohen, who turned from Trump consigliere to star prosecution witness. Trump’s lawyers have already signaled they will aggressively attack Cohen’s credibility when he testifies, painting him as a liar with an axe to grind.
The prosecution’s questioning of Davidson seemed to be a preemptive strike against this defense strategy. Indeed, Davidson’s comments aired problems with Cohen’s credibility before Trump’s lawyers could parade them in front of jurors.
Steinglass, for example, asked Davidson whether he’d kept communicating with Cohen after the election. Davidson recalled one particularly animated 2016 phone call.
“Jesus Christ, can you fucking believe I’m not going to Washington?”
“After everything I’ve done for that fucking guy, I can’t believe I’m not going to Washington.”
“I’ve saved that guy’s ass so many times, you don’t even know,” Davidson further recalled of Cohen’s call. “He said I never even got paid. That fucking guy is not even paying me the $130,000 back.”
While cross-examining, Trump attorney Emil Bove did try to chip away at Cohen’s credibility through Davidson’s recollections. Bove asked about Cohen’s behavior in late 2016.
The crestfallen Cohen thought he might have become Trump’s chief of staff, only to find himself out of the picture, Davidson recalled.
“I thought he was gonna kill himself.”
Bove also grilled Davidson on his legal dealings related to other former A- and B-listers, such as Hulk Hogan, Charlie Sheen and Tila Tequila, a Playboy model turned born-again Christian who has allegedly flirted with alt-right ideologies. In an obvious effort to make Davidson look déclassé, Bove also asked whether the Hustler publisher Larry Flynt had offered to indemnify Daniels if she came forward about Trump.
Prior to Davidson’s testimony, prosecutors once again asked Juan Merchan to punish Trump for still more alleged gag-order violations; the four alleged instances involve two comments about Cohen, one about the jury, and one about Pecker. The hearing on Thursday morning came two days after the jurist fined Trump $9,000 for other gag order violations. Merchan has barred Trump from attacking witnesses or jurors in the case.
“The order was issued because of the defendant’s persistent and escalating rhetoric aimed at participants in this hearing,” said the prosecutor, Christopher Conroy, of Trump. Conroy said that prosecutors were not seeking jail at this time, to avoid delaying the proceedings, but are seeking fines.
Todd Blanche complained that Trump has an unfair disadvantage because of the gag order. He argued that his client is running for president, after all, and that Joe Biden is able to say whatever he wants about the case.
“Judge, last weekend, President Trump’s rival, President Biden, said in a public forum – he talked about this trial, and he talked about a witness that’s going to be in this trial. He mocked President Trump. He said, ‘Donald has had a few tough days lately – you might call it stormy weather,’” Blanche said.
“President Trump can’t respond like he wants to because of this gag order,” Blanche said, adding, “Stormy weather was an obvious reference to Stormy Daniels.’”
“Everybody can say whatever they want, except President Trump,” Blanche said later.
Merchan seemed unmoved by the argument. “They’re not defendants in this case,” he said, noting that non-defendants such as Biden are not bound by his gag order. Merchan was yet to decide on the prosecutors’ request.
Davidson’s first day on the stand on Tuesday was also characterized by colorful testimony about how deals with McDougal and Daniels came together in 2016. Prosecutors are using his testimony to help jurors understand the mechanics of Trump’s efforts to pay off women and convince jurors that it was done in service of his campaign.
Davidson described his struggles getting Cohen to wire the $130,000 he had agreed to pay Daniels after weeks of delays. Asked why he believed Cohen was delaying payment, Davidson said: “I thought he was trying to kick the can down the road until after the election.”
Trump, who showed off a new trial outfit, with a marigold tie and navy suit, seemed to be more present at proceedings than on days past. He did not appear to fall asleep, but did look bored as his attorney cross-examined a witness who was answering questions about evidence.
This article was amended on 2 May 2024 to correct the amount of money that Davidson said in testimony that Michael Cohen sent to Stormy Daniels.
