IE 11 is not supported. For an optimal experience visit our site on another browser.

Judge in hush money case denies Trump's bid to prevent Michael Cohen and Stormy Daniels from testifying

Judge Juan Merchan also said prosecutors could refer to, but not play for a jury, Trump's "Access Hollywood" comments.
legal trump case new york
Stormy Daniels and Michael Cohen.AP

A New York judge on Monday denied Donald Trump's bid to keep his former lawyer Michael Cohen and adult film star Stormy Daniels from testifying in the former president's criminal trial related to a 2016 hush money payment.

State Judge Juan Merchan gave Cohen and Daniels the green light to take the stand but placed some restrictions on Daniels' testimony, specifically that she can’t testify about a lie detector test she took in 2018 indicating she’d been truthful about her comments about Trump.

Manhattan District Attorney Alvin Bragg’s case alleges that Trump falsified business records to hide money he was paying Cohen to reimburse him for $130,000 Cohen paid Daniels in the closing days of the 2016 presidential campaign. Daniels has claimed she had a sexual encounter with Trump in 2006. Trump has denied that he slept with Daniels, but he has acknowledged repaying Cohen.

In a court filing last month, Trump's attorneys argued neither Cohen nor Daniels should be allowed to testify because they're "liars." Cohen admitted having lied under oath during his testimony at Trump’s recent civil fraud trial, but the judge who presided over that case found his testimony “credible” despite his admission.

In Monday's filing, Merchan said that he had also placed some limits on another witness who claims she had an affair with Trump — former Playboy model Karen McDougal — and that "exact limitations" would be discussed in court before jury selection. Trump, who has pleaded not guilty, has denied he had a relationship with McDougal, as well.

Trump had more success in Merchan's filing with another piece of evidence he argued should be kept out of the trial: the "Access Hollywood" tape. In the 2005 hot mic audio, Trump could be heard saying he can grope women without their consent. The audio surfaced after Trump became the Republican nominee in 2016, and the DA's office has argued that the bad publicity spurred the payout to Daniels.

Merchan said that prosecutors can elicit testimony that the tape "contained comments of a sexual nature which Defendant feared could hurt his presidential aspirations" but that "it is not necessary that the tape itself be introduced into evidence or that it be played for the jury."

But in another setback for Trump, Merchan didn’t sign off on his request to use a partial "advice of counsel" defense.

In a court filing last week, Trump's attorneys said they planned to argue their client didn't think he was doing anything wrong by paying Cohen back in transactions that were listed as legal fees because of his "awareness" that lawyers had been involved in the talks. They said Trump wasn't asserting a formal advice-of-counsel defense, which would entitle prosecutors to more information about his communications with his attorneys.

Merchan said Monday he was rejecting that defense, finding that if he didn't, it essentially would have allowed Trump to get the benefits of the "advice of counsel" defense without the obligations that come with it.

"The result would undoubtedly be to confuse and mislead the jury. This Court can not endorse such a tactic," Merchan wrote.

Trump's attorneys didn't immediately respond to a request for comment. Bragg's office declined to comment.

It's still not crystal clear when the trial will start. It had been scheduled for March 25, but Merchan on Friday postponed it until at least mid-April after federal prosecutors in Manhattan belatedly turned over more than 100,000 documents relating to Cohen's role in the case. He also scheduled a hearing for next week to discuss that matter and didn't rule out the possibility that the hearing could affect the trial's start date.