Desperation and Delay

Donald Trump and his lawyers spent today on desperate, last-gasp efforts to try and avoid facing justice in Manhattan. They all look like they’re dead on arrival.

Early this morning, the District Attorney’s office filed their response to Trump’s motion seeking to recuse Judge Merchan because his daughter has a job and works on Democratic political campaigns. The DA’s response began with something we anticipated—that the Judge should dismiss this motion because Trump already filed more or less the same motion, and he doesn’t get a second bite at the apple after the Judge rules against him. He can take it up on appeal if he’s convicted. But this is the same-old same-old, filed again, undoubtedly at the demand of the client in hopes something will save him from being the defendant in the first-ever criminal trial of a former president.

The DA cut straight to the chase, writing, “defendant's motion is nothing more than his latest effort to delay the forthcoming trial; and—in both timing and substance—appears transparently reverse-engineered to provide an ex post justification for defendant's attacks on the Court and the Court's family. This Court should reject defendant's dilatory tactic and deny the motion.”

Later in the day, the Judge sent the lawyers his instructions for voir dire—jury selection, which strongly suggests he expects to be starting the trial phase of this case next Monday morning. We’ll get to that in a moment.

Perhaps sensing the recusal motion was doomed, Trump’s lawyers also tried to file…something. It was difficult to decipher at first because it was sealed, but seemed to be an appeal by Trump of an unspecified ruling. My assumption when I saw it was that it had something to do with the gag order Judge Merchan had imposed on Trump. That assumption turned out to be correct, but only in part. Trump will apparently raise the gag order in a motion tomorrow. Today, he argued that he was entitled to a change of venue because the jury pool in Manhattan is biased against him. The appellate division denied the motion within hours. Trump got nowhere today.

This afternoon, Judge Merchan sent a 17-page letter regarding jury selection to the lawyers. You can read it here.

It’s very unusual to use an anonymous jury—one where the identities of individual jurors are concealed. Typically, it's reserved for organized crime cases or other situations where their service puts their security at risk if their identities are known. By the same token, you can already sense Trump preparing to argue on appeal that the use of an anonymous jury process gave the jury the impression he was a threat to them and was prejudicial. So the Judge will give potential jurors an instruction designed to minimize any prejudice: “The court and both parties in this matter have agreed that your names will not be publiclv disclosed. Further, your addresses will not be shared with anyone other than counsel for these parties. We are doing this to preserve your privacy and to protect your identities from members of the public. You must not draw any inferences, in favor of or against either party as a result of this Order.”

But beyond that, in many ways, the Judge’s process reflects what you expect in jury selection. It’s not about finding jurors who don’t know anything about the case; it’s about finding jurors who are willing to set aside what they know or think they know and decide the case purely on the basis of what happens in the courtroom. Donald Trump is entitled to a jury of his peers, not a jury of his followers. The Judge admonishes Trump’s lawyers, “Contrary to defense counsel's arguments, the purpose of jury selection is not to determine whether a prospective juror likes or does not like one of the parties. Such questions are irrelevant because they do not go to the issue of the prospective juror's qualifications. The ultimate issue is whether the prospective juror can assure us that they will set aside any personal feelings or biases and render a decision that is based on the evidence and the law.”

The parties weren’t able to agree on a statement the Judge would read to potential jurors to describe what the case is about. So the Judge crafted his own, which suggests the case is one involving allegations of election interference in advance of the 2016 election.

Voir dire is a little more complicated here because of how well-known Trump is as a former president. Potential Jurors will be asked whether they’ve ever been to a Trump rally, for instance. They’ll be asked if they’ve read former prosecutor Mark Pomerantz or former Trump lawyer turned witness Michael Cohen’s books, which touch on this case. But there’s a full range of more “normal” questions seeking to determine whether a potential juror might have worked for Trump or in law enforcement to draw out any potential bias the lawyers might want to explore, for instance. They will be asked where they live, how they are employed, whether they’re married, and what their hobbies are. The pool of possible jurors will also be asked where they get their news from, a question that’s always of interest to the lawyers in a case that has garnered any significant publicity but will draw special notice here.

Apparently, jurors will not be asked which Substack newsletters they read. That seems like a glaring oversight. On the other hand, I’d be willing to bet that a surprising number of potential jurors will tick the box to say they don’t follow the news. This never failed to surprise me when striking a jury.

Jury selection starts with a questionnaire that has 42 questions encompassing these and other topics. The lawyers will be able to inquire further, although the Judge cautions them not to go too far.

The Judge advises the lawyers, “Please note, there are no questions asking prospective jurors whom they voted for or intend to vote for, or whom they have made political contributions to. Nor are jurors asked about their specific political party registration, though the answer to that question may easily be gleaned from the responses to the other questions. Counsel is forewarned not to seek to expand the degree of intrusion beyond what is relevant and has already been approved.” Judge Merchan has already demonstrated the ability to keep tight control of a case. Expect to see it on full display with both the lawyers on the defendants when jury selection starts.

Expect to watch Donald Trump grow increasingly desperate to try and prevent this case from going to trial as the week continues.

Also today, Jack Smith filed his brief in the immunity appeal in the federal prosecution in the District of Columbia that will be argued before the Supreme Court on April 25. We’ll take up the arguments in the brief tomorrow if we can get a little breathing space from the Manhattan case. In essence, it argues that there is no immunity that protects a former president from criminal prosecution, but even if there is, it doesn’t extend to a conspiracy to overturn an election, interfere with the transfer of power from one administration to the next, and deny people their right to have their votes count.

Never a dull moment.

We’re in this together,

Joyce