The Week Ahead

April 14, 2024

It’s hard to believe that we are finally here. This week, Donald Trump faces justice in a Manhattan courtroom. Here at Civil Discourse, we’ll be following all of the proceedings, understanding the legal detail and assessing how the case is going. As always, we’ll look at the good, the bad, and the ugly, so we can have a realistic understanding of what is taking place in the trial.

Jury selection is not usually the most exciting part of a trial. And in the absence of video or even audio of those proceedings, the start of Trump’s criminal trial in Manhattan tomorrow may feel underwhelming. But there is no mistaking that the case itself is monumental—the first ever criminal trial of a former president. The first few days, or weeks, depending on how long it takes to select a jury, may deliver less of a punch than the phase of the trial where evidence will be presented, which will begin once the jury is empaneled.

I say “may” because there are some wild cards in the mix. Trump has been engaging in behavior that can only be viewed as baiting the Judge all weekend on social media. Trump has called the Judge “conflicted,” the prosecutor “corrupt,” and the criminal justice system chaotic. He wrote that the state of New York (which isn’t prosecuting him, it’s the Manhattan DA) is overrun with “violent crime and corruption,” and attributed his prosecution to “Joe Biden’s henchmen.” This does not violate the gag order in the case, but an earlier post about witnesses arguably did. Trump denigrated the character of his former lawyer Michael Cohen, who is on the DA’s witness list, and former prosecutor Mark Pomerantz, who it has been suggested could be called by Trump. Pomerantz resigned from the DA’s office and wrote a book after District Attorney Alvin Bragg declined to continue his investigation.

The gag order prohibits Trump from making public statements about witnesses concerning their participation in the investigation or the trial. Questioning their credibility would seem to cross that line, although, as we’ve seen Trump’s lawyers do in the past, they’ll argue he went right up to the line without crossing it. Inevitably, the Judge is going to have to deal with the issue of Trump’s behavior at some point. The challenge will be enforcing his rulings without giving Trump the martyr status he’s indicated he’d like to cloak himself with. Whether it’s gag order violation or courtroom behavior, it’s hard to imagine we’ll make it through the trial without conduct by Trump that the Judge has to address.

That point is undoubtedly not lost on the Judge, who has years of experience dealing with difficult situations from the bench. He has been a judge since 2006. He was appointed by then-Mayor Michael Bloomberg to the New York City Family Court for Bronx County. He continues to preside over mental health and veterans courts. Judge Merchan is in the unenviable position of figuring out how to hold Trump accountable without letting him take advantage of the situation—a balance that has eluded virtually everyone who has had to deal with Trump since he entered the political arena.

Judge Juan Merchan

During jury selection in the second E. Jean Carroll defamation trial, when the judge asked if any of the potential jurors felt like they had been treated unfairly by the court system, Trump raised his hand slyly. The crowd laughed and the judge told Trump: “We know how you feel.” It’s unlikely Judge Merchan will indulge any behavior like this from Trump in a criminal case.

Trump’s strategy for jury selection will be to find one or more “holdout jurors.” A holdout is someone who the defense believes will be both on their side and capable of sticking to their guns and refusing to vote to convict, at least on felony charges, even if everyone else on the jury is convinced that’s the appropriate outcome. It is very unlikely that Trump will get an outright acquittal. That would require every juror to find he isn’t guilty, which is very unlikely unless the prosecution has an unexpected flaw in their proof. It’s far more likely Trump’s lawyers will be looking for a holdout juror they can get past the prosecution.

Judge Merchan laid out the process he will use in a letter to the parties last week. The “venire”—the pool of potential jurors from whom the jury will be drawn—will be a group expected to exceed 500 people. The Judge will start with a large group of them in his courtroom. He will give them a summary of the case and introduce the defendant.

A number of people, Trump chief among them, have suggested this case isn’t a serious one. Trump reposted a comment tonight on Truth Social that maintained the case is about a “minor bookkeeping misdemeanor.” But Trump’s conduct suggests he knows it’s far more serious than that. He is, after all, the one who has pulled out all the stops to try and keep this case from going to trial. If it were such a minor matter, you’d expect him to be eager to clear his name instead of letting the case drag on for over a year. Trump’s desperation to prevent the public from learning about his sexual encounters with Stormy Daniels in the wake of the release of what the New York Times called at the time the “extremely lewd” Access Hollywood tape was so extreme that he engaged in a complicated scheme involving his then-lawyer, Cohen, and cooking the books with fake entries to try to commit tax and/or campaign finance fraud.

The Judge seems to see it that way, too. He’s indicated that he will offer the jury the following explanation of what the case is about.

Donald Trump, jurors will be told, “falsified business records to conceal an agreement with others to unlawfully influence the 2016 presidential election.”

Once the potential jurors, who must be English-speaking U.S. citizens over the age of 18 who reside in Manhattan and have not committed a felony, are seated, the Judge will begin the process of winnowing down their number to the twelve jurors and six alternates who will serve on the case. Jurors can be removed for two reasons: for cause because they cannot be fair and impartial, or by one of the parties using a peremptory strike, which permits the parties to remove a juror they have the proverbial bad feeling about so long as it isn’t a prohibited reason like race, national origin, or gender.

Judge Merchan has said he will begin by asking jurors whether they believe they can be fair and impartial, and that he will excuse those who indicate they cannot be. This will avoid the necessity under New York law of individually interviewing each person in this group before dismissing them, which the Judge wrote his experience suggests would take a lot of time without changing the outcome. He also noted it would be difficult in terms of space because each conversation would be held out of the hearing of those in the courtroom, but the defendant is entitled to hear each conversation, which would mean accommodating lawyers, defendant, and secret service agents in addition to the juror being questioned. The Judge suggested that would be a mess, so instead, he’s short-circuiting that process by, in essence, permitting jurors to self-select out for cause.

The remaining jurors will be called into the courtroom in groups of eighteen. They will each read their answers to the 42 questions on the questionnaire the Judge devised with input from the parties. The questions range from details about jurors’ backgrounds, including where they live and work, as well as inquiries about how they get their news and whether they’ve attended rallies or campaign events for Trump. They will also be asked whether they have ever supported extremist groups including the Proud Boys, Oath Keepers and Antifa. But they won’t be asked who they voted for in the last election.

The jurors’ identities will be withheld from the public because of security concerns, but the Judge will try to prevent that information from being revealed to jurors in a way that could prejudice their view of the defendant. That may be a difficult needle to thread and could provide Trump with a potential issue on appeal, but the Judge carefully cited legal precedent for proceeding in this way.

Lawyers for both sides can ask follow up questions. Then, the lawyers can exercise “for cause” strikes, which require the Judge’s approval, or use up to ten peremptory strikes on each side to remove people from the pool. This process continues until there are 18 jurors and alternates neither side has struck. Then it’s go time.

It’s impossible to predict exactly how long jury selection will take. Estimates range from a couple of days to a week or more. It took a week to strike the jury in the 2022 criminal trial for the Trump Organization and individual defendants, also handled by Judge Merchan. The old adage is that while cases are not usually won in jury selection, they can be lost. Lawyers take it seriously and often resort to using high-priced jury consultants to make the best picks possible.

Trump is charged with 34 violations of New York 175.10, falsifying business records in the first degree, a felony. The government has to prove that Trump made a false entry into the business records of an enterprise, or caused one to be made and that he did so with an intent to defraud that included an intent to commit, aid, or conceal another crime

We will have plenty of time once trial starts to discuss the issues that will be important, but here is a key one: Will the jury find that the prosecution has provided proof beyond a reasonable doubt that Trump falsified the business records with the intent to commit another crime. If so, they should convict him on the felony charges. But Trump has suggested that the charges are, at worst, misdemeanors. Here’s how that might play out: his lawyers will ask the Judge to instruct the jury on what’s called a “lesser included offense” theory, which will direct the jury to come back with only misdemeanor convictions if they believe Trump is responsible for the false business entries but don’t believe he possessed the intent to defraud and conceal other crimes.

One example of a lesser included offense involves the crime of burglary, which usually involves elements of both breaking and entering into another’s home or business and doing so with the intent to commit another crime while there. Trespassing is a lesser included offense of burglary—if the prosecution only proves breaking and entering but not the intent to commit another crime, the defendant can’t be convicted on the burglary charge but could be convicted of trespassing. With Trump’s personality, he may insist on an all-or-nothing approach, but depending on how the government’s proof comes in, and given the fact that Trump is already suggesting the charges might “just” be misdemeanors, look for the defense to press hard on this approach.

How do we know the hush money payments were about the campaign, not Trump’s desire to protect his wife, who was at home with their young child while he was with Stormy Daniels? There are a lot of reasons, but one of the chief ones comes from the prosecution’s statement of facts. Trump directed Cohen to delay making payment to Stormy Daniels for as long as possible. He told Cohen that “if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public.” So much for Melania Trump’s feelings.

The government will have to deal with Cohen’s status as a convicted felon and self-confessed liar when he takes the witness stand. Presenting a witness like this isn’t easy, but the government’s best strategy is to remind jurors that they didn’t pick the witness—the defendant did. Here, Cohen has told a more or less consistent version of his story since first agreeing to cooperate. Prosecutors surely wish he had less of a public presence, but he is clearly not a witness within their control. Ultimately, they will have to corroborate his testimony with other witnesses or with documents. But the point remains, why did Donald Trump use Michael Cohen to conceal this scheme if everything was on the up-and-up? Ultimately, this is a paper case, and much of the proof will be in the form of business records and other physical evidence uncovered during the execution of the search warrants on Cohen.

This case is an early chapter in the story of Trump’s willingness to cheat in elections and break the law in order to win. In that sense, it’s the most fitting place for prosecution to start.

Trump’s trial isn’t the only important legal date on the calendar this week. On Monday, the Supreme Court hears oral argument in Snyder v. U.S, a case that considers whether state, local, and tribal politicians can skirt the prohibition on accepting bribes by accepting “gratuities,” payments made to them after the fact, instead of beforehand. On Tuesday the Court hears Fischer v. U.S., where the Court will decide whether the government can use a statute that prohibits obstructing an official proceeding against January 6 riotors, and by extension, whether it is properly used by Jack Smith to bring two of the four counts against Trump in the D.C. indictment. Trump’s reply brief in the immunity appeal is also due this week.

What will Republicans be doing as all of this goes on? Originally, they announced this as the House GOP’s agenda for next week.

No, it’s not SNL; this was their actual agenda. Subsequently, following Iran’s attack on Israel Saturday night, Majority Leader Scalise announced that “the House will move from its previously announced legislative schedule next week to instead consider legislation that supports our ally Israel and holds Iran and its terrorist proxies accountable.”

House Republicans can’t take up issues like protecting voting rights or pass budgets on time. But it’s good to know they’re concerned with freedom for refrigerators. All told, House Republicans intended to take up such important measures this week as the “Hands Off Our Home Appliances Act,” and the “Liberty in Laundry Act.” Don’t forget about the “Clothes Dryers Reliability Act” or the “Refrigerator Freedom Act.” Then, step aside Affordable Care Act, Republicans wanted to advance the “Affordable Air Conditioning Act.” And they had intended to finish up their work with the “Stop Unaffordable Dishwasher Standards Act.” That was their original agenda, a rather June Cleaver-ish affair but apparently the best they could muster for the week that the leader of their party, their nominee to be President of the United States, will be a defendant facing criminal charges in a courtroom in Manhattan. They simply aren’t fit to govern.

We’re in this together,

Joyce