hello, i'm chris jansing live at msnbc headquarters in new york city alongside my coanchor. >> also with us, vaughn hillyard reporting from outside the courthouse. peter baker, chief white house correspondent for the "new york times" and msnbc political analyst. duncan levin, criminal defense attorney and senior staff at the manhattan d.a.'s office and shan wu. just remind us where her testimony left off. >> reporter: right. we were getting into the nitty-gritty of the actual nondisclosure agreement between stormy daniels and michael cohen and she testified just before the jury went out on lunch break that she understood that the nda was being signed by donald trump. that he was party to this agreement here, but that michael cohen was representing him with this agreement here.

so what we could expect from the prosecution as they continue their questioning of daniels is why ultimately there in those closing weeks of october 2016 she decided to go, number one, with the $130,000 payment. an agreement to sign this nda with trump and cohen versus say going to an outside publication and having her story going public there in the closing days of the 2016 election. but then we could also likely hear the prosecution ask her about her further understanding between her conversations with keith davidson, who was her attorney at the time, about what she understood that this agreement entailed. and what led over the course of 2017 into 2018 to her ultimately going public with her story after it was first reported about in "the wall street journal" and sitting down for an interview with 60 minutes in which she detailed her allegations. donald trump, we know from testimony from david pecker,

previously last week, had suggested that donald trump was irate when she went public and she should owe him $1 million for every time she spoke his name. so we could get into that sort of back and forth as to what she understood the agreement to mean and how long the agreement would contractually bind her to not speaking publicly. >> so i want to go back into the document because judge merchan has gotten back on the bench and he said he asked the defense counsel if they wanted a limited instruction on daniels' claim about threats that happened. she said in a parking lot, this is todd blanche and i'm going to bring this on both to you onset. duncan and shan. we move for a mistrial based on the testimony this morning. the guardrails were thrown aside. that testimony was so undually

prejudicial to trump and the charges in the case and the testimony about 2006 is way different from the stories and i'm literally reading it as they're typing it in. that she was pedaling back in 2016. is this something todd blanche needs to do and would be normal to do or is it something the judge has to seriously consider? >> todd blanche is making a record. obviously he's moving for mistrial. it is not going to be granted. frankly, the prosecution is walking a tight rope with a witness who's going too far. the prosecutor keeps asking questions. merchan has already several times said just answer the question being posed. the prosecution is trying to keep her walking in sort of a line here through the questioning. what she's saying is unto itself very salacious.

this, remember, was the story donald trump was trying to keep from coming out right before the election. right after the access hollywood tape came out. so it's salacious by its own nature, but what the judge is trying to do is have them not infect the proceeding with something that is so beside the point. that is so prejudicial that it outweighs what's called the probative effect. it's outweighed by how prejudicial is the details of it. so they're trying to walk a fine line here. they're moving for a mistrial. it is going to be denied. he's making a record for appeal so it's what he has to do. but at the end of the day, it's a reminder that this testimony has to basically be narrow. it's in a way, unnecessary testimony because it doesn't get at one of the elements of the offense and to the extent it gets at anything that is related to the offense itself, it's just that there was $130,000 here. it violated then campaign

finance laws. the rest of it is relevant because the story was going to come out before the election. >> let me read more from the argument blanche is trying to make before the judge. he says all these details that stormy daniels revealed during her testimony related specifically to what happened in that hotel room and the allegations of the sexual encounter, he says all this has nothing to do with this case and is extraordinarily prejudicial and the only reason they asked aside from embarrassment is to inflame the jury. there was testimony about a second alleged sexual advance sometime later, totally irrelevant to the case. blanche goes on to say she testified there was communications with trump afterwards and that something bad was going to happen. she made sure to meet him in public places and this was said repeatedly and the jury hears it. so he's going on and on. he's going through different pieces of his testimony, revisiting these different

cases. and blanche says there's just no way to unring the bell in our view. shan, what do you make of this argument? is there merit to it? >> not for purposes of the mistrial. there's not going to be a mistrial here because these arguments would have been made previously and the judge gave them guidelines. for the mistrial, they have to argue that despite how the judge wanted to proceed, somehow it's gone off the rails. blanche appears to be rearguing what he would have said beforehand. on the salacious point, understand why he has to keep making that point and making his record. but i think there's too much emphasis on that word even. it's not stormy daniels' fault or the prosecution's fault that people think this is a salacious event. it's just what happened. and they need the prosecution to supply the full circumstances of this to bring it to life and frankly, the more blanche emphasizes how salacious it is,

he's not in front of the jury at the moment, but it also emphasizes why it would be embarrassing for trump. and this whole notion of a motive that may be it's to protect his wife versus political ultimately doesn't fly. >> let me go back to what he's saying. he said he's also inserted safety. that goes back to this incident and we talked about it before the break where there was an encounter she said she had in a parking lot in las vegas. my daughter and i were going to a mommy and me workout class. i was approached by a man in a parking lot in las vegas. i thought he was the husband of one of the other women in the class. he threatened me not to continue to tell my story. >> that was in 2015. >> right. what story? about my encounter with mr. trump. you've gone way off the rails when you're bringing safety in it. >> the prosecution is entitled

to bring this in. they're making a choice to bring it in and they're running a risk they're going to get slapped down by the judge a bit in doing it and they're again walking this tight rope. but this is well within their rights to bring in. >> why would the prosecution feel like this is necessary for the jury to hear? >> because at the core of this is that the defendant in the case was covering up some horrible news. i think the jury's entitled to know what it was. at the end of the day, what he was so afraid of. what motivated his action. what the prosecution's going to do at the end of the day is going to close and they're going to go through these jury instructions and they're going to ask if mr. trump had the intent, the specific intent to cover up these falsified business records or have them falsified in order to violate the campaign finance laws. they're going to argue that he did it because of this bombshell story. if you let it go unsaid, the defense is going to argue there was no bombshell story.

there was nothing that was going to come out. this was a big nothing burger and this was not going to happen. so they're entitled to argue it. now, they don't need all this detail. they could just say there was a sexual encounter. they don't need to go into this level of detail and i think they're trying to pull it back a bit so they were walking that fine line. at the end of the day, they're entitled to argue that mr. trump was very, very motivated to keep this particular, horrible, horrible story quiet. >> on that safety issue on that question. there's a good argument that they should object and stop that from coming in, but it helps her look more credible. which is she's coming forward and telling her story despite the consequences. there's pressure on her. she feels threatened. so she's sitting there today as a witness who has weathered a lot and is under a lot of stress. it helps portray her in a more humane fashion and makes her more sympathetic to the jury. >> will the judge rule on this

from the bench? >> i think it's highly likely it will get shot down. >> now we have the district attorney's office and prosecutor making her argument for answering the claims and allegations that blanche has risen. she says is story is highly appropriate going to motive. this is not a new account and she goes on, this is again, not new. this is not a new account. they opened the door to this, she argues. that it was something donald trump's team had opened the door. i seem to remember right before they even called daniels to the stand, even before the first witness took the stand this morning ahead of daniels' testimony, there was a discussion about some of the parameters around her testimony and specific to the sexual encounter and how many details should be allowed. but the defense all along had

opportunity throughout her testimony to object, right? why wouldn't they have objected when she was making, telling the story about that encounter in the parking lot, shan? >> because they want a mistrial. they want that to come out then they can say you can't unring the bell. if they affirmatively stopped it before it came out, then it's protected. by letting it come out, they'll have a better argument for mistrial, which will still be denied. >> vaughn, lay out that this is a story that along the way has changed. >> reporter: right. this is the argument that trump's attorney is saying is part of their arguments in daniels' testimony should have been limited in this first place here. they're contending the story she would have told publicly in 2016 and her story did become public, would vary from what she is telling here the jury today. making the case that right, if we are expecting the prosecution in a closing arguments to suggest that the reason why

stormy daniels' story was so pertinent and why $130,000 payoff took place to keep it from going public was because of how much a bombshell the details of her story would be. it was out there in 2011 on a blog. the fact she had an encounter with donald trump, but this, what the prosecution is going to argue, is it was the details that were going to matter so much in why donald trump wanted to conceal the story and have these hush money payments concealed through calling these legal expenses here. so what the argument is from donald trump's attorney is that this is the kind of attorney that makes it possible to come back from and that her story she has now chronicled to the jury is not the same story that would have been public for the american public ahead of the 2016 election that the prosecution is prepared to say worked as a contribution and one that would have been more damaging to donald trump. >> i want to go to peter baker and we are hearing a little bit

from trump now. just moments before he returned to the courtroom before the break was over. at 1:56 afternoon, he writes on truth social, quote, the prosecution, which has no pace, has gone too far. mistrial. what's your reaction, peter, to this comment and overall, how donald trump has been characterized this morning? it sounds like he has certainly held his tongue in court. he's at times had his eyes closed. at times, he's been talking quietly with his lawyers. certainly engaged in the testimony. >> yeah. look, that social media message, who is the audience? of course, that's not the judge. he's not making a legal argument. he's making an argument to the voting public, to his supporters. what he's trying to say to them is focus on the injustice to me. not on the tawdry details of what i did or may have done or was alleged to have done. in other words, this is a day

that if you step back for a minute, we have been waiting for in some ways for seven or eight years. you see these two players in this drama, donald trump and stormy daniels, confronting each other in a court of law. and she in that court of law at a moment when he faces the penalty of possibly being incarcerated, she's telling a story that's not very flattering to him. and he wants of course, as a candidate, to distract from those details to focus on what he says are the injustices of the proceeding. that's why you see that message. >> todd blanche is arguing inside the courtroom as we go back into the document, that there's absolutely no reason for a mistrial, but -- the exact quote is i don't think there's any basis for a mistrial. but before that, the ada, the assistant district attorney, said they have drafted a limited instruction that merchan can

give to prevent prejudice, but a mistrial is not warranted. explain what that is. >> basically, they're concerned about protecting their record. both sides are. and the defense is moving for a mistrial. they're saying if there's a conviction, it might be a basis for an appeal. the prosecution is trying to protect their record, also. so they want, the jury's heard it all. so eliminating instruction doesn't do that much, but in the legal fiction that a juror would reject something that the judge told them to reject, which is really the law of the case, limiting instruction would be something the jurors are only in their deliberations allowed to consider so much. disregard so much. it's like when a witness saying something on the record and they say strike that answer. >> the bell's been rung. >> but they're not supposed to go back into the deliberation room. oh, remember when that witness said something, that's not fair game. but no one's back there with them so no one really knows what's going on. >> let me read because merchan

is ruling on this now. he says as a threshold matter, mr. blanche, i agree, there were things that should have been left unsaid. i think the witness was a little difficult to control, but and here's the key line. i don't believe we're at the point where a mistrial is warranted. and then there's a motion to strike some of the testimony. >> he says that motion is in fact granted. he says i was surprised there weren't more objections and there was some laughter in the overflow room in this. we just discussed that. you said this was part of the defense strategy all along. let them have a little bit of leeway here so you could raise this mistrial objection. essentially after the break. right? so where does, where does testimony go from here? what do you expect the judge to do? will he create more limitations around stormy daniels' testimony moving forward? what do you think? >> i'm not exactly sure what the instruction is going to be. it may be telling the jury to disregard certain aspects of the

testimony. that threat part, i think they would want to have the jury told. you shouldn't be taking that as some notion that mr. trump, something along those lines. of course, the double edge of that is when you ask for instruction, it brings more attention to what the testimony was. that's always the strategy question you have to decide on is do i really want to flag this more. >> and the judge is suggesting that the defense needs to take some responsibility. he says, quote, when you say the bell has been rung, the defense has to take some responsibility for that and he says the remedy is on cross-examination. you both have experience. what does the defense do on cross? >> we know what the defense is going to do in part. part of the cross-examination is political. they are going to go after daniels as a liar, extortionist. they already did for her lawyer earlier. and they are going to do the

same thing to stormy daniels because they're trying to establish she's a liar. the question is does any of that get to the bottom line for what these charges are. i think they're going to have a difficult time navigating her because she's going to be just as difficult a witness in answering their questions on cross-examination as she is answering hoffenger's questions on direct. they're going to try to cabin her in as a liar and i think she's going to talk and give her side of the story and try to get that rapport with the jury and work on that. we'll see where they go with it but i think that's what they're going to be trying to do. >> i think even before today and what we read inside the document, if you saw any interviews ever with daniels or you saw the documentary that's on peacock right now, she is a feisty person and she talks about her life in a very forceful way. so assuming she's going to do the same on cross as she did on

direct, shan, does it benefit one side or the other that she has that personality and that force of personality? >> really benefits the prosecution. for the defense, she's a very treacherous witness to cross examine. if they go at her too hard the way their client probably wants to go at her and attack her, you're a liar, that's not going to play well with the jury. even though they chose to have a female do the cross-examination. stormy daniels' documentary, other things, she comes across as feisty, but she's also sympathetic. they have to be very careful not to look look they're assuming the personality of their client. the smartest thing to do on cross-examination for her is keep it very narrow. just point out that she doesn't have any knowledge about the bookkeeping. she can't testify trump directed this whole scheme and then sit down. that would be the smartest thing. >> and there's been some more

back and forth between the judge and trump's lawyers. saying you know, something about the lack of objections. and he's firmly coming back at them saying if you're going to say something like that, be accurate. we'll just have to agree to disagree on this. i think i signal to you and to the prosecution that we are going into way too much detail. he did and we talked about how he at one point did come across angry during some of that prosecution questioning and how daniels was answering those questions related to the fine details of the sexual encounter. he says having said that, i don't believe we've reached the point where a mistrial is in order. i believe you have the remedy of cross-examination. he goes on to say the more times a story has been changed, because that's something else they've been arguing, the more fire for cross-examination that you have. do you agree with that, duncan?

>> yeah, look. they have a lot to work with on cross-examination. this is not an, this is a witness who brings baggage much like michael cohen does. it is not a i think a coincidence that the d.a.'s office has left some of these witnesses for a little later in the trial. they've started off with their easiest witnesses. the ones, you know, even david pecker who owned up to everything and the salaciousness of it, he owned up to it. keith davidson is a lawyer and he's living in a gross world of pedaling his client's stories for jobs and money. there was some embarrassment to it, but these are easier witnesses without a lot of baggage. now we're getting into cohen, daniels. there's a lot for the defense to work with here. i think a lot of it is legally beside the point and at the end of the day, the prosecution's going to argue this is not relevant to the facts at all. all that matters is that this is a story that was going to come out. they'll say it was a different

story. prosecution will say so what. it was a bad story. doesn't matter if there were little details that were different. at the end of the day, i think the defense has a remedy in cross-examination. they'll do it and the judge is right to strike this down. it's just not a worthwhile motion to make. >> so strategically for the defense and going back to what feels posted on truth social at 1:56, the prosecution, which has no case has gone too far, mistrial, all in caps, exclamation point. so you know where donald trump is coming from. even if he's going to his lawyers saying you go after her, we are told he's been whispering a lot into the ear of blanche who is sitting next to him. so presumably as this testimony is going along, he's giving his own version of it to his defense team. just go methodically. if there had been discrepancies in what she said over the years, lay them out. ask her why she changed her story. do you need to go in hard?

would that be the right approach? do you have enough as the judge points out. if you have a story that's changed many times, the more fire for cross-examination. >> judge is absolutely right. the fact that a witness has changed their story a lot is certainly not grounds for mistrial. good trial lawyers salivate at that. great. changed the story. has nothing to do with the mistrial. it's about what they're testifying to now. still a tough choice for them. do they want to wade into these discrepancies and say that's not what you said then because the base of the story is still going to stay the same. so i still think while they have lots of ammunition, talk about the jury looking at it like a tennis match. for todd blanche sitting there between trump and trying to watch like he's at a tennis match, too. smartest thing for him to do is try not to keep reemphasizing

the very details that would be the most embarrassing. if i were him, i'd want to get her off that stand as quickly as possible. >> that's if you were trump's lawyer. i'm wondering, as far as we know when she comes back, the prosecution might have additional questions for her. after all of this, if you're the prosecution, are you wishing you could unring the bell on some of these? that these could be problematic for you with the jury or on appeal down the road potentially? and do you change tactics at all going forward? >> i don't think you're interested, that's a helpful bell for you to have rung on the prosecution. i think the only thing they may have wished, that she was talking really fast and seemed sort of nervous. but that's something you might want to deal with on rebilling the witness. ask her. are you nervous? do you talk fast when you're nervous? >> just a reminder, the jury has not been in the room during all of this discussion about a mistrial. and vaughn, one of the things

that we've heard the defense, i don't know if you would say it was arguing with a judge over, but it's been a point of contention between the two is the issue of why didn't you raise more objections during the prosecution if you were concerned about the line of testimony. the defense did raise some objections. remind us what those were and how that all went down. >> reporter: right. there were several times that donald trump's defense attorneys did raise objections and judge merchan deciding that there is no mistrial at this point said that he sustained most of those objections brought forward by donald trump's team while adding on he was surprised frankly they didn't raise more objections. one of the points of inquiry and arguments from trump's team is over that particular 2011 incident in a las vegas parking lot that stormy daniels alleges to have taken place. she said that in touch magazine had come to her about

potentially publishing a story related to her encounter with donald trump and ultimately, they didn't run with that story, but then she detailed in front of the jury that she was with her daughter going to a workout class in 2011 in this las vegas parking lot then a man, who she was never able to identify, threatened her to never share her story publicly and to stop talking about her alleged encounter with donald trump. over the course of her sharing the parking lot story, at no point did donald trump's attorneys raise objection to that. when they came back from break, that is one example they gave because they called it prejudicial and cast donald trump in a negative light, implying he was behind this supposed scare tactic to keep daniels from sharing her story. now, it's part of this back and forth here currently taking place the prosecution has suggested to judge merchan and

the defense that they would put forward a draft limiting instruction regarding the parking lot incident and the limiting instruction would allow the judge to go back to the jury once they come in and revisit that particular incident and the judge would order them to take into account that incident for one reason but not others. so suggesting to them that they should not take a larger implication away from that as to ensure that this is a fair trial and not prejudicial to donald trump here. and so this is sort of in the weeds here but an important element that the judge directly acknowledging he was surprised that donald trump's defense team didn't raise an objection over for example this very specific evidence that they now want him to determine this trial to be a mistrial on these very factors. >> well now the judge has made an additional decision beyond the fact that he's not going to declare a mistrial. there's a little pause in the proceedings and here's why. because merchan is waiting for

hoffinger to speak with daniels to make sure she just answers the questions without giving additional answers or information beyond the scope of the question. we were having this discussion in the break. which is some arguments can be made that you just want to let a witness be themselves. and sometimes to talk to someone, whether they're giving an interview or they're a witness in a trial, just makes them overthink. it makes them nervous. it makes it more difficult. so what is that conversation like that she has to have with stormy daniels? >> this is not a normal case. you have witnesses out there that have podcasts. >> stormy daniels is one of them. >> that are writing books. on twitter saying all sorts of bad things about the defendant. mr. trump brought, his lawyers brought up before this gag order is being applied to him but not

to people like cohen who are out there talking about him. so they're in a position where the witnesses are out of control and i think that's been a problem since day one for the prosecution as they've been preparing this case. they have out of control witnesses. now, the defense has an uncontrollable client. the prosecution has some key witnesses they cannot control. so i think she's having a very serious conversation right now with her to say look, you've got to answer these questions because you are harming the case. you're putting it in jeopardy by saying too much. you've got to answer the questions. as they go into this cross-examination that will in a way benefit the defense. they are going to ask yes or no questions. expect that the cross-examination if it goes like every other cross-examination, is not going to be allow her to have narrative answers. they're going to say isn't it true that. and try to make her answer in a very, very narrow kind of way and they don't want to have her have an opportunity to undermine

the whole case by getting away from that. so i think it's a serious conversation. she'll get it and i think hopefully everyone, it's everyone's benefit basically that she answers the questions going forward. particularly on cross-examination. >> it was apparently a brief conversation because she's back and merchan confirms that they had a chance to speak. he says let's get the witness in. daniels has now retaken the stand and as our reporters note, trump once again catches a glance of her as she walks by. so peter baker, that moment the two of them in this courtroom, it's been years since they've come face-to-face with each other. lot of bad blood between the two after these revelations came out years ago. remind us of that relationship and what has transpired since this story came out. since all of the conversations

she alleged to have had with trump when he was calling her honey bunch. >> i think you're right. it's a kind of shakespeare quality. kind of a low shakespeare, but there is something remarkable about the king brought to court to confront the person who's accusing him. the person who has been out there in his life now for a decade or more as a threat to his public character. to his political prospects. of course, you know, they have not been the same room for most of that jousting and now they are. now he has to look at her and she has to look at him. and there's something rather extraordinary about that. and do we trust her versus him. this is the question for the jurors. they're going to have to make that determination. we, the broader public, don't get to see that in real time because there's no video of this trial which is a shame because it's harder to make an

evaluation just based on our reporting. to the public without them having a look themselves. after all these years, after all of this jousting and effect through intermediaries, through social media, through books and through podcasts and all the like, finally at this moment, they face each other in a court of law and they will see, we'll see how a jury evaluates these two characters who were going up against each other. >> peter baker, thank you. i want to bring in robert ray who was a member of donald trump's legal team during his first impeachment trial. good to have you back. >> thank you. >> i was remembering that back when a mistrial was asked for in the civil fraud case and it was denied as it was just denied here. donald trump got angry. he stood up, stormed out of the courtroom. he has been much more contained i think this time around. he seems to at least to some

extent, be taking the advice of his attorneys who would surely say to him you don't want to give the jury anything that would suggest something negative. but peter's right. 15 feet apart from the woman who the encounter with her brought him to this point. what must this be like for donald trump and what do you think his mindset is right now? >> mistrial moments are never enjoyable for a defendant who is on trial. because you know that something bad may have happened and the likelihood that a judge is going to exercise the nuclear option and blow up the trial and send everybody home and start all over, that would be a very difficult thing to do in a case like this. >> and how do you explain trump in his truth social post almost celebrating the possibility of a mistrial? >> i don't know about celebrating it, but it obviously has political value because it

furthers the argument that the process to him is unfair. you could tell, i mean, you know, with all due respect to the more recent commentary here about the significance of this, if the prosecution is going about drafting a limiting instruction, they know they have an issue here that could be potentially an issue on appeal. i have to say letting in testimony, no matter how it comes from in, from 2011, which is way outside what this case is supposed to be about. books and records. 2016, election. the concealment of this conduct and the sort of the penultimate issue which is whether or not it was intended to influence the outcome of an election in 2016. 2011 and sort of veiled threats and safety by some unknown third party with no connection to donald trump is a prejudicial

moment. that's a problem. that may not be a catastrophic problem but if the prosecution is going about drafting a limiting instruction, trust me, i've been there. they understand it's an issue that has to be addressed. >> so if you were his attorney in this case, would you go to him in this break and say to him, i know this is hard to take. nobody wants to sit there and hear these kinds of details or this kind of commentary in some cases, about their private life, but this has been good for us. >> i don't know about that. look, all i am suggesting is prosecutors get into trouble when the reason that they're calling the witness is separate and apart from the elements of this offense. now, you know, this could have been very carefully limited testimony to get to really the only relevant issue that daniels can provide with regard to this case and that is concealment. i understand that it has

salacious aspects to it and i understand why everybody is gravitating to those facts. just telling you that's where prosecutors get into trouble. they didn't have control over this witness. seems to be pretty obvious to the judge they didn't have control over this witness because he told them to go back and talk to her before testimony resumes and essentially reign her in. >> so it was still the d.a.'s office who was leading her through this testimony. and was directly bringing up some of these different points along the timeline between 2006 when this alleged affair happened and 2016 when there was this apparent hush money deal to buy the story from her so that she wouldn't speak out and reveal this information is the allegation. >> and they took a detour into 2011, which was unfortunate. by the way, i'm not sure a limited instruction is going to cure that. >> why do you think they would

have wanted that detail? >> i don't know the prosecution did want it. it sounds like she just went out of and dumped it into the record before the jury. >> wasn't it related to the fact that the story had been out there previously and that didn't seem like they were trying to cover it up then? >> the impact of that is raises the specter of safety and threats, which at least suggest that donald trump was behind it. that is prejudicial and there's no probative value to that that isn't outweighed by its prejudicial impact. i would suggest, my own view of this is the way a judge handles that is at the time, it should have been objected to. stricken from the record and the judge -- >> that was the point. they could have objected. >> they had a continuing objection. i'm not sure they'll be deemed to have waived that on appeal. the solution was objection. move to strike, and jury instructed to disregard. a limiting instruction now i'm not sure what the purpose of that is. i think the judge would be probably well advised to

consider having some kind of an admonition to the jury to disregard that evidence and not allow that to enter. >> what is judge is saying is the answer is cross-examination. what do you do? >> you have to be careful. first of all, that may not be an adequate answer if an appellate court decides that prejudicial impact at that time was sufficient to warrant a new trial. but as a yes, as a strategic and tactical matter, you've got to be careful with that. you can exploit that but of course all you're doing is raising the issue again for the jury which is frankly not in the former president's interest as far as his defense. so that's why you're put into a hobson's choice. i think that's the point probably todd blanche is making. he's laying down that record in the event there's an appeal. i don't disagree with the judge's determination that the nuclear option should be

exercised. but it's a warning about the danger of bringing in testimony that in large measure is collateral. the principle purpose of her testimony should have been limited to one issue and that's concealment. that's it. >> robert, thank you so much for coming on the program. we want to go back in to court and vaughn hillyard, it's interesting because they've got an e-mail now that they're showing again between keith davidson and michael cohen. but this is one we've seen before, right? so in this context, why are we looking at this now? >> reporter: because stormy daniels is testifying here to the jury that she was the one who was leading the approval of the arrangements with michael cohen through her attorney, keith davidson. on october 11th, a deal was struck for $130,000 to go from michael cohen to trump, but then on october 14th, the day they

were supposed to get the $130,000, she is testifying they did not take place. then she said on october 17th, she asked keith davidson so e-mail cohen saying that the deal was off. that they had not received funding so therefore, the nondisclosure agreement was dead. and that's where you should expect this afternoon if under cross-examination when the defense team comes up to expect to ask her about some of this timeline here. those two weeks in the middle of october as to why she didn't take her story elsewhere. because it wasn't until october 28th that the agreement was reestablished and yet again, she testifies that she gave the approval to her attorney to give the thumb's up for this 130,000 deal to go through. she also just testified it was her understanding that donald trump was the other party of this agreement. again, that was october 28th. so what the prosecution is doing is getting out ahead of some of

these questions that are going to come under cross-examination as to why she didn't take her story and make it public. one other line of questioning was that stormy daniels, january 2018, when her story became public. "the wall street journal" detailed in a more explicit way the arrangement that she had and the payment of $130,000 just two weeks before the 2016 election. prosecutors asked her did she ever talk to "the wall street journal" about the publication of that story. she says no. that they reached out but she did not respond. they noted that in the article, it says she did not respond to comment and she was asked by the prosecution why she did not comment for that story and she said because she had the nondisclosure agreement and understood that a breach of that agreement could cost her $1 million for every time she mentioned donald trump. so this is again getting out to some of the minutia as to her

understanding of the fine print was and why she did not go public with her story until 2018. >> okay, stand by. as we continue to look at this document. reporting coming directly from the testimony of daniels inside that courthouse. were you happy to just stay quiet and not say anything related to her story because of the nda. she says absolutely. hoffinger. did you want to sign this? no. was it in some way true? yes. hoffinger, did you know that davidson would be sending this statement to michael cohen and daniels says yes. hoffinger says did you know it would be sent to the "wall street journal." daniels, not specifically. did you later learn when "the wall street journal" came out. now we're waiting for the rest of that sentence to be filled in. here it is. wall street article shown.

when this came out in january of 2018, did it have an impact on your life? daniels says chaos. suddenly people on my front lawn. friends asking questions. everyone i worked with. everyone in the neighborhood. so that's when the story came out in "the wall street journal" revealing these details and the hush money payment and all of that. i want to bring in jeffrey cy, a former federal prosecutor who worked on the case that many say has parallels. the defendant in that case, john edwards, who was accused of using campaign money to hide an affair while running for president. in your case, rielle hunter never took the stand. i'm curious what you think of this decision by the prosecution to call stormy daniels. >> i think one of the issues you're seeing now, especially with the motion that the defense just posted is with the court is this idea that sometimes too

much is too much. and for the prosecution, the central thesis behind their theory of the case is context is everything. so everything that goes back to 2011, to 2016, is absolutely crucial to understanding what then happened in 2016. and the edwards case, you had a slightly different scenario. at least different in the sense that fundamentally, the root of that case was whether or not donor money that was coming in was in fact campaign contributions that should have been reported. that was the root of that particular matter. here, it is and it isn't at the same time for the prosecution. they want to be able to tether themselves to the idea, the prosecution, that this case is no different than any other white collar fraud case that's about documents and the falsification of those documents. but they still need to on a more nebulous level as compared to

the edwards case, show that there was something about the campaign itself that was at issue. so here in putting daniels on the stand, the prosecution is going right at it, but they're also at the same time opening themselves up, as you can see through the motion for a mistrial, some of the dangers that can come along. one last point i'll make about what you saw in the edwards case. you can't sometimes control your witness and that's always an issue for the prosecution to consider. >> it's worth pointing out in your case the jury famously acquitted edwards on one charge. deadlocked on the others. that led doj to drop the case, but it is interesting and instructive to show now what some of those jurors in your case told nbc after they came to a verdict. or no verdict. >> well -- >> let me play, i'm going to play a little bit of what they told us at that time.

>> burden of proof wasn't there. the evidence. >> i think he was guilty but like we said, the evidence just was not there for us to prove guilt. >> they also say, jeffrey, they were uncomfortable with using campaign finance laws to punish a candidate's personal misdeeds. and we know that this is a very novel approach that's being used by the manhattan d.a. to take what at the start of it was a misdemeanor and elevate it to a low level felony. so in that sense, could prosecutors today have a similar challenge that they'll think either that the evidence isn't there or they're just uncomfortable with the idea of using campaign finance laws, which in the end, they think is to cover up a personal story. >> in a word, yes. the problem in big, high profile

cases like this that have salacious details and allegations that are typically on tabloid headlines is that it opens the door to the prosecution doing too much at times. when that happens, it forces a juror or in this case, 12 jury members, to have to now debate amongst themselves what is just salacious allegation meant to make someone look bad versus what they're being asked to actually judge in terms of the facts to the law. and what i would say in this instance is just like almost every other trial we see, and this one i don't think is going to be any different. is the jurors are going the take their jobs pretty seriously. with all of the salacious details that are coming out, the prosecution has a pretty big job right now to make sure they don't do too much of it. so what we see in a potential limiting instruction is likely going to be if the government has any kind of pen on this, is to write something of such a

nature that ultimately benefits them and what they're going to write in there is that some of those details as to whether or not it was true or not true ultimately is not for the jury to find. the reason why that still benefits the government if the judge ultimately gives an instruction of that nature, is it tends to reenforce this idea that whether it's true or not true doesn't matter because context still matters. it's the underlying motivation of what then caused mr. trump and mr. cohen to do what they're accused of doing. >> thank you so much for coming on the program. >> and now, back into the courtroom and the document here what's happening on the stand is stormy daniels continues with answering questions that the prosecution is asking her and they're going back to 2018. "wall street journal" reveals all the details that we now know about. the hush money payments and the $130,000.

in this case, that was paid to stormy daniels. and they're asking about sort of how she was asked to respond to this story. and hoffinger asks were you asked to go on fox? daniels, they asked me if i would be willing, yes. did you agree? no. why not? daniels, because i didn't want to. hoffinger. january 30th, 2018. were you scheduled to go on the jimmy kimmel show. yes. daniels. shortly before i went on the show, they bought dresses. hoffinger then submits as evidence something and she says daniels says this is a statement that was handed to me in my hotel room when i was in town to do the jimmy kimmel show by davidson. hoffinger, did you sign it? yes. she goes on, how did you seen it? stormy daniels, but not as my

signature looked any other time that i've written it. why did you sign it that way? daniels says as a tip off to jimmy kimmel. is that because you were upset about signing it? yes. was the statement false? yes. then they go on to say michael cohen was making public statements in february 2018. and there was an objection there which was sustained and i'm just going to scroll forward. hoffinger says was he denying you had an encounter with mr. trump. this was what cohen was saying. no, he was saying that i did and he was the fixer. why was that upsetting to you? daniels says because he could talk an it and i couldn't. so now they're getting into some of the details following the statement. michael cohen's come up here and how he was approaching this. what stands out to you about this back and forth that we're

hearing, shan? >> i think this is really trying to portray her as not being someone who's trying to initiate all this. she didn't have an ax to grind. that she's really being seesawed. people are coming to her, she's being asked to do things and she's not always comfortable with it. again, shows the full 360 that she's not some sophisticated, cunning person trying to do this. but a little naive trying to figure out her best path forward. they're preempting some of the sting out of the cross-examination questions. there's still lots of ammo for cross, but i think it's a very double edged sword for them on cross. they could say well, this was helping your career, you wanted the publicity and such, but all that tends to only bolster why it's an embarrassing story for trump. so i think still very difficult to cross. >> as they're going on, you can sense her frustration in the

fact that now she has this nda and she says he could talk about whatever he wanted but i couldn't, right? so she goes and gets another lawyer. by the name of michael avenatti. and why did she do that? she says so i could stand up for myself. why did you want to get out of the nda at that point? so i could stand up for myself. did avenatti file a lawsuit against donald trump and michael cohen? yes. did you also go on 60 minutes with anderson cooper? yes. after you were freed in that nda as a result of what we discussed, did you publish a book? yes. about my life up until 2018 and it goes on this way. you can talk about the importance of that but what also strikes me is her answers are short and to the point now. >> she got the message loud and clear. she's a witness that gets to this notion of concealment and

donald trump intended to conceal this. they didn't do a good job of it and it spun out of his control. he tried to have somebody quiet her and make it go away. he couldn't do it. you're seeing all the ways in which she's feisty and she has every right to tell her story and she's telling it and he couldn't control her by paying her $130,000. it wasn't enough and it all unravelled. this testimony gets to the point that he was trying to conceal something and it wasn't working well. >> this is an interesting little bit of it because she also said that she wrote the book not just to make money but quote, so my daughter would have an account from her mother about why i did the things i did. that's something that maybe very relatable for the jury. >> i think so. that does a lot to sort of portray her as a full person. someone who's working for a living trying to make something for her daughter and her own notion. there was a question earlier about embarrassment for her

about what happened with trump. that really goes to the idea that as a parent, she wanted to have some story for her daughter to understand these things in context. so i think that's very powerful. >> now they're getting into another potentially thorny topic for daniels. and the prosecution's bringing up the fact that there was this defamation suit that she had filed against donald trump and she lost this defamation suit. remember? and so hoffinger asks in april 2018, avenatti filing a defamation case against trump. did you want him to do that? no, it seems like a bad choice. in april 2018, he has a sketch of a person you encountered in 2011. trump tweets that was a con job. in response, did mr. trump say it was a con job and daniels says yes. so they're continuing to talk now about that particular time period. i want to bring in david k.

johnson. the author of the book, the big cheat, the founder of d.c. report.org and a syracuse law professor. david, just want to get your thoughts on everything we've heard today. >> first and foremost, let's not misunderstand the role of daniels here in american politician. she is not a hero. a lot of people have been wanting to hear her testimony. if she had spoken about this, we might not have had a trump presidency given the billy bush access hollywood tape. similarly with miss mcdonald. both took money to be silent. that doesn't make them in any way profiles if courage. now, the prosecutors in this case as you've been discussing with other witnesses, made a decision that they were going to get out stuff proactively about

her, anticipating a tough cross-examination. they could have chosen instead to do a very economical and lean questioning of her then if necessary, rehabilitate her on redirect. but you know, they've made their choice. and they'll have to live with what the judge and perhaps an appellate judge, if there's a conviction, decides down the road. but people should not be thinking that daniels by speaking now and tieing together these facts is somehow a heroic figure. she's not. >> in the meantime, david, i want to ask you about something that happened outside of court because donald trump obviously has expressed his frustration with this gag order in many ways and instances. as someone who has known him and studied him for a long time, do you think he was serious when he said earlier today he would make the sacrifice of going to jail

over this gag order? >> donald is not nelson mandela. he is not constitutionally capable of going to jail as a martyr and believing in principles he's somehow defending. he's an empty vessel. in many ways, he's a 13-year-old boy in a 77-year-old man's body. donald's remarks here are all designed to try and build up the support that he thinks he should be getting. and he's not. virtually no one outside the courthouse demonstrating on his behalf. so donald doesn't want to be in jail for one minute. and this issue of whether he should be jailed because of the ten criminal contempt findings by the judge. ten criminal contempt findings. i think you'll see that come home to roost assuming he's

convicted, at sentencing. where the judge would have a lot of discretion at sentencing because of his misbehavior. >> always great to get your perspective and i want to thank everyone who's been a part of this hour. we've got much more of our special coverage of former president trump's hush money trial and the testimony of stormy daniels right after this quick break. stimony of stormy daniels right after this quick break. [announcer] introducing allison's plaque psoriasis. she thinks her flaky gray patches are all people see. otezla is the #1 prescribed pill to treat plaque psoriasis. allison! over here! otezla can help you get clearer skin and reduce itching and flaking. with no routine blood tests required. doctors have been prescribing otezla for over a decade. otezla is also approved to treat psoriatic arthritis. don't use otezla if you're allergic to it. serious allergic reactions can happen. otezla may cause severe diarrhea, nausea, or vomiting.

some people taking otezla had depression, suicidal thoughts or weight loss. upper respiratory tract infection and headache may occur. ♪♪ [announcer] with clearer skin girls' day out is a good day out. live in the moment. ask your doctor about otezla. a slow network is no network for business. that's why more choose comcast business. and now we're introducing ultimate speed for business, our fastest plans yet. we're up to 12 times faster than verizon, at&t, and t-mobile. and existing customers could even get up to triple the speeds at no additional cost. from the company with 99.9% network reliability and advanced cyber security, it's ultimate speed for ultimate business. and it's all from comcast business.

judge merchan. quote, this is the kind of testimony that makes it impossible to come back from. todd blanche said. that's donald trump's attorney regarding daniels' account on the stand e.