Trial in Manhattan

The newsletter starts tonight with enormous gratitude to folks in the courtroom, reporters and lawyers, who are live-blogging and tweeting the first criminal trial of Donald Trump. It’s ridiculous that the former president is on trial and Americans can’t watch, or at least listen to, the trial in real time. I have strong views about the damage done by excluding all but a very few people from access to the courtroom during this most important of trials, so I’m grateful to the people who are sitting in and recording their impressions and the proceedings so we can follow along. If you’re looking for some good follows: Adam Klasfeld, Norm Eisen, Hugo Lowell, the WAPO and NYT updates, and Politico all caught my eye today. Most of my analysis tonight is based on their work, as well as information friends in the courtroom have shared.

Many defendants seem to be incapable of focusing on the reality of their situation until they face jury selection and see the people who will sit in judgment on them. That reality began to sink in for Trump today. He showed up looking haggard and with bags under his eyes, appropriate for a man who seemed to spend much of the night and early morning hours tweeting nonsense on Truth Social. He will doubtless continue to lie and bluster, but this is a solemn and serious moment for a defendant, and no matter how much he thinks he is, Trump is not an exception.

The morning started with Judge Merchan denying Trump’s renewed motion to recuse. No surprises here. We discussed the law previously—judges have an obligation to stay on a case when there is no legal obligation to recuse. Judge Merchan previously received an ethics panel opinion that approved his participation in the case, and Trump offered no new reasons for him to recuse. "To say that these claims are attenuated is an understatement," Merchan said.

So why are Trump’s lawyers engaging in these sort of tactics? They won’t delay the case, and his lawyers know they’re extremely likely to lose. It’s all about preserving possible issues for appeal.

A surprising amount of what goes on at trial on Trump’s side of the courtroom will be about appeal. That started with pre-trial motions and will continue with jury selection and throughout the trial. It’s precisely what you would expect to see in a significant white collar prosecution, and it’s a reminder that much of what Trump’s lawyers do will be the type of legitimate defense work you would expect to see. As a defense lawyer your job is to identify possible reversible error, object to it, and hope you can live to fight another day if your client is convicted.

Judge Merchan took up a number of pre-trial motions, many about admissibility of evidence, before jury selection began late in the day. (This, by the way, isn’t unusual ahead of jury selection in many jurisdictions. Although it’s common in state systems, there are federal courts, like those in Alabama, where this goes on too. It’s important to understand that the practices vary from place to place, and sometimes even from judge to judge in the same courthouse.)

There is a general rule that prosecutors can introduce evidence that is sui generis, part of the story of the crime and necessary to explain context to the jury. So the Judge ruled, for instance, that the prosecution can introduce evidence of the National Enquirer’s involvement in “catch and kill.” The prosecution wants to show the jury positive headlines from the National Enquirer in 2016 that were run past Trump for approval before publication, calling them the “concrete manifestation” of the scheme to suppress bad stories about candidate Trump and push negative stories about his opponents. The Judge decided the evidence was “inextricably intertwined” with the facts of the case.

He will make a number of these rulings about admissibility of evidence in advance of trial. Others may come up while the case is underway. Note that under the rule below, 4.21(2), a defendant can “open the door” to evidence prosecutors might not otherwise be able to use by making certain arguments. If Trump, for instance, continues to deny having had affairs with witnesses Stormy Daniels and Karen McDougal, things could get interesting.

So, the Judge will let the jury hear some evidence about catch and kill and Trump’s affairs that Trump objects to. Trump’s lawyers will make note of potential issues on appeal. As a practical matter, trial judges have broad discretion to decide what evidence will be admitted and will only be reversed for abuse of discretion. That explains why the Judge won’t let prosecutors elicit testimony that Melania was pregnant while Trump was having an affair with Karen McDougal. That evidence would be unduly prejudicial without adding important evidence that shows he’s guilty of the crimes he’s charged with.

These are the kinds of split rulings that get a judge affirmed on appeal, showing an evenhanded exercise of judgment. Along the same lines, the Judge reconfirmed that the prosecution can discuss the contents of the Access Hollywood tape but can’t play the actual tape for the jury. The Judge refused to let the prosecution offer Trump’s deposition from the E. Jean Carroll trial. You get the drift here. Judge Merchan continues to make careful legal rulings that will be defensible on appeal if there is a conviction. We are off to a good start.

Calendar notes: The trial will take place every day except Wednesdays, which the Judge has reserved for other matters, including the veterans and mental health courts he oversees. He also announced he would not hold trial on days that conflict with any jurors’ religious observances.

Trump must be in court every day of trial. The Judge advised him—and this is the rule for all criminal defendants—“If you do not show up there will be an arrest.” No wiggle room there.

But there is still some wiggle room, or at least a week’s grace period, before the Judge will hold a hearing and decide whether Trump violated the gag order by posting about witnesses on social media. Judge Merchan set a show-cause hearing at prosecutors’ request, but didn’t schedule it until Wednesday, April 24. At a show-cause hearing, the burden is on Trump to convince the Judge he shouldn’t be held in contempt.

As we discussed last night, the Judge has the difficult job of holding Trump accountable without making a martyr of him. It’s a tough balance to strike. But this decision feels lenient, although there are some possible explanations. Perhaps the Judge is giving Trump enough rope to hang himself with—but he’s already had plenty. There is a legitimate concern that doing this on the eve of trial, when it would be sure to receive widespread publicity, could result in prejudice to the jury, perhaps to the point of reversible error. It might make sense to hold off until the jury is selected and sworn in, and the Judge instructs them to avoid reading or discussing any news from external sources. We’ll see if the timing on that plays out and if this is just a measure of care from the Judge. But we are at the point where, whether it’s the gag order or misconduct in the courtroom, Judge Merchan is going to have to figure out how to hold Trump accountable for his behavior if he doesn’t want to play ringmaster to a circus instead of judge for a trial. I don’t say this critically of the Judge in any way. He has a difficult job here, and so far, he’s shown that he’s up to managing Trump.

The prosecution objects to three of Trump’s posts, focusing on Michael Cohen and Stormy Daniels. They want the Judge to order him to take them down and fine him the modest sum of $1000 per post. Most importantly, they want the Judge to tell Trump he’ll take him into custody if he violates the order again. Progressive discipline makes sense, but it’s time to get moving.

Then there’s Michael Cohen and the issue of his prior federal conviction. Trump’s lawyers want to emphasize that he’s a convicted liar without edging into areas that might suggest that if Cohen is guilty, Trump must be guilty too since the crimes are related. Prosecutors told the Judge, “We have no objection to a limited instruction advising the jury that they can not consider Michael Cohen’s guilty plea as evidence of the defendant’s guilt.” The Judge told Trump’s lawyers, “You want to bring up crimes he [Cohen] was convicted of to demonstrate that he’s a bad guy, … But at the same time, you want to stay away from an area that the People definitely want to go into.” The Judge promised Trump’s lawyers he would make it clear to the jury that Cohen’s guilty plea to federal charges does not mean Donald Trump was also guilty of those charges.

This is part of the tedium of trial. There are lots of rulings that have to be made on evidentiary and other issues.

When jury selection finally got underway, more than half of the prospective jurors in the first panel of 96 people were excused after they told the Judge they could not be fair and impartial. That suggests 45 or so were willing to at least consider it, which seems like a pretty good start. Seriously. We’re talking about the trial of Donald Trump, so it’s unsurprising lots of jurors might have strong feelings they can’t overcome. The whole idea of this proceeding is to weed them out.

The Judge got underway with 18 potential jurors in the box. One was excused, presumably for cause, before the end of the day. The Judge will pick up there tomorrow morning. After a full day of voir dire, we will have a better sense of how much time it’s going to take to get a jury.

New York Times correspondent Maggie Haberman and others reported from inside of the courtroom that Trump was nodding off during the proceedings this morning. If he can’t keep his eyes open when his own liberty is at stake, why would Americans have confidence he’s capable of paying attention when our country’s interests require sound presidential leadership? Trump was also observed with his eyes closed this afternoon as jury selection was just getting underway. That’s hardly the way to make a good impression on jurors. And yet, in such an important matter, Trump lacks simple good judgment. If Joe Biden fell asleep in a courtroom or anywhere else, it would be a front page story for the rest of the week. This should be too.

We’re in this together,

Joyce