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Cornered by the 'Estrogen Mafia': Keith Davidson on the Stand

Anna Bower, Benjamin Wittes
Wednesday, May 1, 2024, 6:19 PM

Also with testimony from Gary Farro, Robert Browning of C-SPAN, and Phillip Thompson. 

New York State Supreme Court, Criminal Term, at 100 Centre Street on April 30, 2024. (Photo credit: Anna Bower)

Published by The Lawfare Institute
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Previously on Trump New York Trial Dispatch: "'Standard Operating Procedure' Sure Seems Criminally Sleazy"

April 30, 2024

As Donald Trump enters the room—notwithstanding his red tie, which signals Trumpian normalcy insofar as that is a thing—it becomes clear that today is a different sort of day. His entourage is bigger. 

Most visibly, today marks the first day that a member of Trump's family has appeared alongside him in court: Eric Trump. The younger Trump is sitting alongside an older woman named Susie Wiles, who has been hailed as Trump’s “most important adviser” and “de facto campaign manager.” Ken Paxton, the Texas attorney general who narrowly escaped impeachment and remains under indictment for securities fraud, is also here. 

It is 9:32 a.m., and Justice Juan Merchan sweeps into the courtroom, resplendent in his robes, the fluorescent light glinting off of his silver cap of hair, judicial authority radiating from his very being. 

The parties do the usual introductions. 

Today we are slated to pick things up with the testimony of Gary Farro, the private banking executive who worked with Michael Cohen on setting up the accounts at issue in this trial. We are then going to move on to other witnesses, whose order is as yet unknown because the prosecution isn’t risking witness intimidation from the defendant with anything like the basic courtesies of trial practice. 

First up, however, are a few housekeeping matters:

  • With respect to scheduling: Trump attorney Todd Blanche had asked for two days off for graduations of children connected to the defense. These are May 17, so that Trump can attend his son Barron’s high school graduation, and June 3 so that defense attorney Susan Necheles can attend her child’s. The May 17 date, the judge rules, is not a problem. No court that day. Justice Merchan says that June 3 should also be fine for a day off as long as the jury is not deliberating. He reserves ruling on that, however, after conferring with Necheles. 
  • Justice Merchan moves on to the prosecution’s motion to hold Trump in contempt on various alleged gag order violations. He rules from the bench. The court finds that the People have met their burden as to nine alleged violations of the gag order. Justice Merchan slaps Trump with a $1,000 fine for each violation.

We’re done with the prelims: “Let’s get the witness, please.”

Farro now retakes the stand, looking more like a bouncer than a banker. He’s a big guy, and he lumbers in with a hyper-masculine swagger that does not quite prepare the viewer for his articulateness and his deep intimacy with “know your customer” regulations. 

Meanwhile, a reporter is ejected from the courtroom, apparently over some kind of cellphone violation. “Step out, ma’am!” a court security officer barks at a woman who—by her outfit and makeup—appears to be a television reporter. She looks beseechingly at him. “STEP. OUT. STEP OUT!” the officer repeats. More security officers descend on her like jackals on a lamb. 

She is indignant, but she complies and is never heard from again. 

We all rise for the jury. 

Farro’s role today is to finish introducing a set of documents into evidence. We start with a string of emails from and to Cohen, dated Oct. 26, 2016, processing his urgent request for a new bank account for the now-infamous “Essential Consultants LLC.” 

The significance of these internal emails is two-fold. The first issue is thoroughness and detail, getting as much of the story into the record as possible so that the jury does not have to rely on the testimony of Cohen more than absolutely necessary. Here, using documents from First Republic Bank and the testimony of a bank executive with no dog in the Trump fight, the prosecution can show Cohen’s sudden urgency in the wake of the “Access Hollywood” tape of getting the Stormy Daniels deal done to prevent her from talking before the election. 

The second function is subtler. It is to show that Cohen would not have been able to pull off the payment to Daniels quite as easily had he not lied to the bankers about what he was doing. 

The internal emails themselves are not all that interesting, but they are important for this latter purpose. They show that Cohen listed the purpose of Essential Consultants as, well, consulting—rather than making campaign expenditures or paying off porn stars. They include the documents the bankers used to open the account, in which Cohen listed himself as the only signing authority. Within six hours, Farro testifies, the account was created. This was very fast. 

Faster, Farro readily admits, than it would have been had Cohen been more candid. 

There are processes a bank needs to undertake to open an account, he testifies. Cohen did not indicate that the account would be used to make a payment on behalf of a political candidate. Had he done so, it would have triggered processes that involved additional scrutiny and review and therefore slowed things down. Nor did Cohen indicate that the account would be used to buy and suppress a media story. That would have also caused the bank to ask additional questions. 

Prosecutor Rebecca Mangold asks Farro whether any of the paperwork indicated that the account would be used to pay an adult film star. Farro says Cohen gave no indication of that either, and that fact would have mattered too. The porn industry is one that First Republic Bank did not work with, so that would have required additional screening. This would also have delayed, or even prevented, the opening of the account. 

Now the prosecution turns to documents that show how Cohen funded the Essential Consultants LLC account that he used to pay Daniels. 

According to the email exhibits, Cohen asked First Republic to fund the account using funds from his home equity line of credit. This being the banking industry, everything has to have an acronym, so the term HELOC now permeates the courtroom as though it were in common parlance.

On Oct. 26, 2016, the emails show, First Republic transferred $131,000 from Cohen’s HELOC account to the Essential Consultants LLC account. 

The next morning, Cohen filled out a wire authorization form to transfer $130,000 to an account held by Daniels’s lawyer, Keith Davidson.

Again, Cohen was not candid with his bankers regarding what he was doing. Where the wire transfer form prompted him to indicate the purpose of the transfer, Cohen wrote “retainer” in response to that question—as if the funds were being paid to retain an attorney for services, not to pay an adult film star for a media story. On the form, Cohen attested that the information it contained was “complete” and “accurate.” 

Again, this is significant because the wire transfer had to be approved by the bank. There was no indication that the account would be used to pay funds on behalf of a political candidate, which would have triggered additional due diligence and created a delay, Farro testifies. There was no indication that the wire transfer was being made in connection with buying a media story. That might have produced delay as well. And there was no indication that this transfer was connected to the porn industry. That might have delayed the transaction as well—or maybe stopped it entirely—as dealing with porn carries potential reputational risk for the bank, Farro explains. 

All of the Essential Consultants transactions—opening the account, funding the account with the HELOC, and sending the wire—took place within a 24-hour period. Farro says that’s not necessarily atypical for real estate transactions, and Cohen purported to be in the real estate consulting business. But it’s unlikely the matter could have been handled this quickly had the bankers been aware of the true purpose of the transaction. 

Mangold announces that the prosecution has no further questions. 

 “Any cross?” Justice Merchan asks. 

Blanche makes his way to the lectern. 

He asks Farro a series of questions about the occasions on which he has met with prosecutors. Farro says he met with prosecutors in the Manhattan District Attorney’s Office twice in the last month, and once last year. He also met with federal prosecutors in Washington, D.C., in 2018 or 2019 on two separate occasions, he says.

Blanche gets Farro to explain that his legal fees have been paid for by his employers—First Republic Bank initially and now his current employer, Flagstar Bank.

This guy is cozy with the prosecution, Blanche seems to be suggesting to the jurors through the former line of questioning. It’s not entirely clear what the latter line of questioning is meant to suggest.

Blanche then turns to the subject of Cohen. Farro first met Cohen at Trump Tower, where Farro's boss introduced them. Cohen was a “challenging” client, Farro explains, “because of his desire to get things done quickly.” Farro, who had a reputation for being “firm” with difficult clients, was selected to work with Cohen. 

And Cohen is an aggressive guy? Someone who is not the easiest guy to work with? Blanche asks. Farro agrees. 

Blanche displays bank forms in which Cohen described Essential Consultants LLC as a real estate consulting company. Farro says that description raised no red flags with him because it seemed consistent with Cohen’s usual business activity. 

And Cohen’s consulting work would, in any event, have been separate from the work he was doing for the Trump Organization, right? Right, Farro replies. 

And Cohen never told you that he was doing a deal for Trump or the Trump Organization? Again, Farro agrees.  

Blanche now asks Farro a bunch of questions that causes the banker to repeat his testimony on direct examination. He wasn’t told the account was for a political candidate; he had no reason to think Cohen was being dishonest about the purpose of the account. The purpose of this line of inquiry is not entirely clear.

Now Blanche skips ahead to the postelection period. Farro testifies that in March 2017 he received a “bounce back” email from Cohen saying that he had accepted a position as Trump’s personal lawyer. The email was the first time Farro learned that Cohen had left the Trump Organization to serve as the then-president’s personal attorney. 

Blanche seems to be trying to establish that there was nothing extraordinary about Cohen’s efforts. You testified that all of the Essential Consultants LLC transactions occurred within a 24-hour period. But the speed of that transaction is not unusual, right? Right, Farro says. Doing things quickly is one reason clients come to us. 

My point is, Blanche continues, that nothing about the way this account was open or funded raised any red flags, right? Farro agrees—at least based on the answers that Cohen gave on the banking forms at the time.

Again, it is unclear what work this is doing, and Blanche seems to sense that. He gives up and ends his cross-examination. 

On redirect, the prosecution elicits from Farro that the bank took away the management of the Cohen relationship from him when the Daniels story became public. It also closed Cohen’s accounts, other than his mortgage. The explanation? The bank chose not to be involved in negative press stories. When the Daniels story became public it was the first time the bank learned of what it had been dragged into. When a client is not honest with us, we choose not to do business with them further, Farro says simply. 

Blanche does the briefest of re-cross examinations. He clarifies that Farro has no knowledge of whether Daniels’s story is true. He clarifies that it was not Farro’s decision to disengage from Cohen and that he has no reason to believe that it was because of the activity itself or the negative blowback from that activity.

Farro, the banker who looks like a bouncer, bounces. 

It's a good time to take our morning break, Justice Merchan tells the jurors, and he dismisses them.

* * *

With the jury gone, the parties argue about whether the prosecution should be allowed to introduce evidence of Trump’s use of intimidation and pressure campaigns against certain witnesses—specifically, Cohen and Daniels—during his presidency. 

That evidence, prosecutor Matthew Colangelo argues, is probative of “multiple purposes.” While Justice Merchan previously barred introduction of such evidence, Colangelo continues, the defense “opened the door” to the introduction of such evidence during opening statements. It claimed then, for example, that Cohen was “previously loyal” but later changed his tune and made the decision to blame Trump for his problems after he got into legal trouble. The defense made similar assertions vis-a-vis Daniels, Colangelo argues.

Justice Merchan asks the prosecution to lay out precisely what use it plans to make of this evidence. Colangelo argues the People will do three things with it: first, use it to offset the defense’s claim that Cohen and Daniels are benefiting professionally from being anti-Trump; second, explain why both witnesses denied facts they now acknowledge to be true; and third, provide evidence of the defendant’s consciousness of guilt. 

Justice Merchan asks Colangelo to elaborate on this last point. How does this reflect consciousness of guilt? Colangelo points to public statements by Trump saying Cohen won’t flip, as well as later statements in which Trump suggests that Paul Manafort, unlike Cohen, would “never crack” if pressured to cooperate with law enforcement. This is evidence of a coordinated effort to bolster the witness and then attack him, and it’s classic evidence of consciousness of guilt. 

Blanche vigorously objects on this last point. Consciousness of guilt, he argues, is something very different from that. Consciousness of guilt is this: How do you know he’s guilty? Look what he did vis-a-vis the charges in this case. It’s of an entirely different order than what’s alleged here. 

Justice Merchan asks the prosecution when it needs a ruling. 

Colangelo says that it would help the prosecution plan its presentation of the rest of the case if the judge rules by Thursday. 

This suggests that Cohen or Daniels could begin testifying as soon as Thursday or Friday.

* * *

Minutes later, the jurors file back into courtroom 1530, and Justice Merchan announces a scheduling change: One of the jurors, he says, has an afternoon flight scheduled for May 24, the Friday of Memorial Day weekend. For that reason, he explains, court will not meet that day. 

The parties have no objections. And the reporters seated in the press room—many of whom are based in other cities and already look like they could use a vacation—definitely have no objections. 

We're ready for the next witness. Will it be Karen McDougal? Daniels? Cohen?

"The people call Dr. Robert Browning."

A collective gasp of confused disappointment runs through the crowd.

Browning is an older man with a slight drawl. He's here from Tippecanoe County, Indiana. He's the executive director of the archives for C-SPAN, the television network. He's testifying under subpoena.

Yes, Browning is here as another documents witness. The prosecution needs him to authenticate certain videos to get them admitted into evidence.​​ 

All of which is why Browning spends several minutes talking about the record-keeping practices of C-SPAN and his efforts to locate documents responsive to a subpoena served on C-SPAN.

His testimony is about as riveting as watching C-SPAN early in the morning. 

The prosecution plays portions of videos produced by C-SPAN in response to its subpoena. There are four clips from various public remarks delivered by Trump in the time frame of the action of the case. The first three clips are thematically similar: Trump, standing before a crowd of supporters in October 2016, says that the “horrible woman” stories are total fiction. One hundred percent made up. Never happened. In one clip, he blames the stories on the Clinton campaign. In another, he threatens to sue. 

All of these clips come from speeches delivered after the “Access Hollywood” tape was published. The prosecution appears to be trying to make one or more of the following points, though we will have to wait to see how the prosecution uses these videos to figure out quite what the point is: 

  • While Trump was denying the truth of these allegations bombastically and threatening to sue the women at rallies, he was working feverishly behind the scenes to pay them off. 
  • While he claimed in public that he didn’t know the women, he called McDougal a “nice girl” to David Pecker and seems to have discussed putting Daniels on “The Apprentice.” He also had contact information for both women, according to the testimony of his former executive assistant. 
  • The campaign was in a full panic after the release of the “Access Hollywood” tape and throwing a lot of spaghetti at the wall to try to get control over the situation. 

The fourth video clip shows Trump talking about Cohen, whom he describes as a “friend” and a talented lawyer. According to Browning, those remarks were recorded on Jan. 11, 2017—shortly before Trump’s inauguration. The prosecution seems to be using the video to establish that whatever Trump’s lawyers may say now about Cohen, he was part of Trump’s inner circle then, at least with respect to damage-control issues as they arose.

The prosecution has no further questions for Browning—and the defense declines to cross-examine him.

Next, the People call Phillip Thompson. Like Farro, he's bald and has a bit of a bouncer look. He works for Esquire Deposition Solutions, a court reporting company. 

Spoiler alert: Like Browning, this witness is here to authenticate records so that prosecutors can admit them into evidence for later use. The records in question are transcript and video excerpts from Trump's October 2022 deposition in the E. Jean Carroll case. 

Mangold, having elicited the requisite testimony to admit the excerpts into evidence, plays the selected clips from Trump’s deposition. In one, Trump confirms his Truth Social handle. In another, he says he has been married to Melania since 2005 and is still married to her today. And in another, he confirms that he's familiar with the “Access Hollywood” tape.

It’s not clear at this stage what role these excerpts are going to play. 

* * *

We’re ready for our next witness, and this time, the announcement of the name generates a murmur of excitement: It's Keith Davidson, the attorney who represented both McDougal and Daniels.

Davidson wears a navy tie and suit. He's a 53-year-old attorney and he currently owns his own law firm, called Davidson & Associates. 

Davidson is here under subpoena. He testified to the grand jury in this case and received immunity, which was granted as a matter of law, not under any kind of special deal with the prosecution. 

Davidson says his practice is based in Los Angeles and specializes in civil litigation: personal injury cases, media matters, and sexual abuse matters. During the period from 2015 to2017, his practice was heavily involved with media cases, he says. 

Did you frequently work on non-disclosure agreements (NDA) as part of those media cases? Yes, he says, and gives an explanation of what an NDA is in media practice. During that period, were some of your clients individuals in tabloids? On occasion, yes. 

Under questioning from Joshua Steinglass, Davidson first talks about his professional relationship with a woman named Gina Rodriguez, whom he describes as a talent manager in Los Angeles. The majority of her clients are reality-show type talent. How do you know her? He doesn’t know. He has known her for a decade and has represented her in certain matters. 

Steinglass now turns to Dylan Howard, the former content editor of AMI and editor in chief of the National Enquirer. Davidson has known him for well over a decade, he says. Around 2015-2017, the nature of their relationship was “professional acquaintances” and “friends,” he says. 

What did the relationship consist of? Davidson would call Howard on occasion if any of his clients ended up in the tabloids. For those who imagined Davidson as a sleazeball client-side representative of those selling content to AMI, however, Davidson says he “rarely” negotiated for the sale of client stories to the tabloids. Davidson and Howard spoke “often,” and he’s still in touch with him “somewhat.”

And what about Davidson's relationship with Cohen? Davidson first met Cohen in 2011, when a blog published an article about one of his clients and Trump.

The client in question, Davidson says, was none other than Stephanie Clifford, aka Daniels.

Do you also know somebody named Karen McDougal? Steinglass asks.

She was a client of mine too, Davidson replies. He began representing her in 2016 regarding her personal interactions with Trump.

For someone who doesn’t represent a lot of people trying to sell their stories to tabloids, Davidson sure seems to have a lot of clients trying to sell their stories to tabloids.

The prosecution now displays text messages from June 2016 between Davidson and Howard concerning the McDougal story. 

"I have a blockbuster Trump story," Davidson texted Howard. 

“Talk 1st thing. I will get you more than anyone for it, you know why…,” Howard replied.

Later that month, Davidson set up a meeting between himself, Howard, McDougal, and others.

The meeting was akin to a “proffer session,” in which McDougal would tell her story so AMI could gauge its interest. McDougal alleged that she had had a romantic and sexual affair with Trump.

But a deal with AMI didn’t immediately materialize, Davidson says. The next month, in July 2016, Howard messaged Davidson, telling him that they should talk about "DT" tomorrow. 

"I think this is the entree for me to go back to them,” Howard said.  

"Better be quick," Davidson replied.

On the witness stand, Davidson explains the context for these messages. During that time, Davidson says, he had been negotiating with ABC News on McDougal’s behalf. ABC was interested in acquiring her Trump story. And Davidson was using that interest to reel in a deal with AMI.

The prosecution displays a text from Davidson to Howard dated July 22, 2016. 

“Don’t forget about Cohen," he wrote. "Time is of the essence. The girl is being cornered by the estrogen mafia.” 

Unlike Pecker, Davidson seems a little bit abashed on the stand when confronted with his past acts. And he’s clearly embarrassed by the phrase “estrogen mafia” (which is, by the way, a great name for a band). Davidson says that he used this “regrettable” phrase because McDougal was about to reach a deal with ABC, and that some women around her were pushing her to accept.

Davidson began to negotiate terms of a potential AMI deal for McDougal, one he considered preferable and better serving her interests.

At the time, Davidson says, he and McDougal preferred an AMI deal over a deal with ABC because ABC’s interest in her was all about the affair with Trump, and she actually had a desire not to tell that story. She had other concerns. She wanted to reboot her career, write about fitness, and launch a beauty product line. A catch-and-kill deal with AMI that gave her the opportunity to do some of these things was preferable to a deal with ABC that gave her cash for a single salacious story about her as Trump’s mistress while Melania was pregnant with Barron Trump—the same Barron Trump who is graduating from high school on May 17. 

This is a good time to take a break, the always-punctual Justice Merchan says now. 

And with that, we're on lunch break. No word on what the former president turned criminal defendant ate for lunch. But for some members of the press, it’s Taco Tuesday

* * *

Davidson is back on the stand after lunch. 

And his text messages with Howard from July 2016 are back on the flat-screen monitors in front of the jurors. 

“She’ll get more out of a deal with AMI than ABC,” Howard wrote to Davidson. “I need this to happen,” he followed up. 

A few days later, as Davidson and Howard continued to negotiate the potential deal for McDougal's story with AMI, Davidson suggested that McDougal would accept the deal if AMI would agree to pay $150,000.

In early August, Davidson and Howard reached an informal agreement on the key deal points for the purchase of McDougal's story. Reaching an agreement had been “frustrating” for all involved, Davidson testifies, but the deal eventually came together. On Aug. 5, 2016, Howard texted Davidson: “Ok we are paying.” 

​​Davidson says that after the deal closed with AMI, he called Cohen. He let him know that the deal involving Cohen's client—Trump—had closed. He told Cohen that the deal would not have happened without Howard’s help. Cohen was “pleased,” Davidson testifies.

Steinglass asks him why he notified Cohen, given that Trump and the Trump Organization were not parties to the transaction. Davidson makes clear that he considered Trump a key party at interest in the transaction, even if the arrangement were being done at arm’s length from him. 

Steinglass now displays the contract between McDougal and AMI, effective Aug. 5, 2016, and walks through it with the witness.

It granted McDougal's limited life rights related to a particular subject matter—any affair she had with “any then-married man”—to AMI. 

Davidson says he understood the married man in question to be Trump.

The prosecutor asks: Why did you think AMI wanted to purchase a story it didn't intend to print? 

One reason given, Davidson says, is that they were trying to build McDougal into a brand and didn't want to "diminish" her. But there was an unspoken understanding that there was a close relationship between AMI and Trump, Davidson continues, and that the story would hurt Trump.

Steinglass: And when you say "hurt Donald Trump," you mean hurt his campaign? 

Davidson: Yes.

Notice that the prosecution has pulled off an important evidentiary coup here. It has now put evidence before the jury that the McDougal contract—which, again, was negotiated between AMI and Davidson—was done for the benefit of Trump. They have done this using testimony from both sides of the transaction without relying on the testimony of Cohen. This is a big deal. 

Steinglass now turns to the subject of Daniels.

The ubiquitous Davidson says he has also represented Daniels as a client. How? The entertainment talent manager, Rodriguez, referred Daniels to him.

Davidson first met Daniels after a blog called (appropriately enough) published a 2011 story suggesting that Daniels and Trump had some sort of "physical interaction." During that time, Davidson dealt mainly with Daniels's manager, Rodriguez.

Cohen had called Rodriguez after the blog story, assuming that she and Daniels were behind the disclosure. He was a "jerk" and threatened to sue.

So Rodriguez asked Davidson for help. He spoke to Cohen, who answered him with a barrage of "abuse." Once Cohen had stopped screaming, Davidson told Cohen that Daniels also wanted the story taken down.

Davidson sent a cease-and-desist letter on behalf of Daniels and was ultimately successful in securing "the client's objective"—which is to say, getting the story taken down.

There was little interest in the Daniels story in the intervening years, Davidson says, but that changed after the “Access Hollywood” tape was released about one month before the election. 

On the day the tape published, Davidson texted Howard: “Trump is fucked.”

Around that time, Daniels's manager, Rodriguez, went directly to Howard to negotiate a deal for AMI to buy Daniels’s Trump story. But AMI backed out of the deal, a story that Pecker has already told, so Howard told Rodriguez to work with Cohen directly on it instead.

Davidson eventually became involved because Rodriguez refused to deal with Cohen. She called Davidson and asked him to negotiate a deal with Cohen on Daniels’s behalf. He initially resisted until Howard himself intervened. 

“The moral of the story is that no one wanted to talk to Cohen,” he says. And it does seem to be an overriding theme of the day.

Ultimately, Rodriguez persuaded Davidson to get involved. It’ll be the easiest deal you’ll ever make in your life, she told him.

There are titters in the courtroom, where Davidson himself chuckles as he recalls this moment, eight years later as a witness in the first-ever criminal trial of a former president.

And so Davidson called “that asshole Cohen” to negotiate a deal for the purchase of Daniels's story. He says he believed Cohen was working on Trump's behalf.

Davidson says that as a part of the agreement reached with Cohen, neither he nor Daniels were allowed to keep a copy of the “Side Letter Agreement”—the document that identified the parties to the agreement (that is, Daniels and Trump). This was unusual, Davidson observes. The settlement itself used pseudonyms. Daniels was “Peggy Peterson” and Trump was “David Denison.” 

Where did the names come from? David Denison was on my high school hockey team, the lawyer recounts. 

How does he feel about you now? Steinglass asks. He’s very upset, Davidson replies.

The trouble was that after the $130,000 agreement was finalized, Cohen missed the first deadline to send Daniels a payment. At the time, Cohen told Davidson that he didn't send payment because his office was "for all purposes" closed for Yom Kippur.

As Cohen failed to send the payment, Davidson threatened to cancel the deal if the funds weren't received. 

But Cohen continued to make excuses. He said the computers were down, that he hadn't received emails, and the like.

When Davidson expressed frustration, Cohen responded “Goddamnit, what do you expect me to do, my guy is in 4 or 5 different states today….” Davidson understood that to mean that Trump was busy campaigning and Cohen hadn't yet been able to get approval to spend money on the deal.

Ultimately, Cohen said, “Goddamnit, I’ll just do it myself," according to Davidson. Davidson understood that to mean that Cohen would not seek authority to fund the deal.

Steinglass: Did you ever believe that Cohen would be the ultimate source of the funds?

Davidson: No, never prior to funding it, no.

Steinglass: Even after he said, “I’ll just do it myself,” where did you understand the money would be coming from?

Davidson: From Trump or some corporate affiliation thereof.

During this time, Davidson had conversations with Howard about Cohen's failure to fund the deal. 

What did you think was really happening with the delays? Steinglass asks. 

I thought he was kicking the can down the road until after the election, Davidson replies.

Steinglass directs his attention to Justice Merchan. Are we taking an afternoon break? he asks. If so, this would be a good time. 

* * *

After a brief break, Steinglass resumes his direct examination of Davidson. 

Did Cohen tell you who he represented? Steinglass asks. 

Every single time I talked to Cohen he leaned on his close affiliation with Trump, Davidson says. I don’t know if it was ever explicitly stated, but he leaned on it very strongly, Davidson explains. 

When you were dealing with Michael Cohen, did you have an understanding about how this deal was going to be funded? I had an "assumption" that it was Trump, Davidson says. This elicits an objection from the defense, which Justice Merchan sustains.

Steinglass tries again: Did Cohen say anything that led you to believe that someone other than him was funding this transaction? Before Davidson can answer, the defense objects. Justice Merchan again sustains.

This goes on for several rounds of questions, as Steinglass tries to ask Davidson questions on this topic in a way that might not be objectionable. With each round, Justice Merchan sustains defense counsel’s rapid-fire objections. Eventually, during a sidebar conference, Merchan tells Steinglass: “It’s time to move on.”  

It’s a trial advocacy fail. For all the headway that Steinglass has made with this witness, this episode marks the first low point for the prosecution.

Moving on, Steinglass displays an Oct. 18, 2016, text exchange between Howard and Davidson after the Daniels deal fell through because Cohen failed to pay.

"All because Trump is tight," Howard wrote. "I reckon that trump impersonator I hired has more cash," he continued.

Davidson says he interpreted those texts to mean that Trump “wasn’t as wealthy as he stated.”

Now Davidson explains how the Daniels deal came together after it initially fell apart. In late October 2016, Davidson testifies, there was an effort to "resurrect" the deal. Howard convinced him to try again. 

On Oct. 26, 2016, Davidson again sent Cohen an email containing wiring instructions for the payment to Daniels. Later that day, Cohen called Davidson to say that he got the instructions and that the funds would go through. Davidson didn't believe him, so Cohen forwarded him an email from First Republic Bank in which a bank employee indicated that funds had been transferred to Cohen's bank account.

The email didn't mean much to Davidson at the time, he recalls, because all it showed was that Cohen had the money in a bank account, not that he had sent the money to satisfy the agreement with Davidson and Daniels.

At this, Justice Merchan interjects. “Mr. Steinglass, is this a good time to break?” Steinglass agrees to break for the day.

“Jurors, we’re going to stop at this time,” Justice Merchan announces. 

And with that, we’re done for the day. 

Read the next Trump New York Trial Dispatch, "Fireworks and Waterworks: Davidson and Hicks on the Stand"

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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