The basic problem with putting Trump on trial
In his 1987 novel about a high- pro le criminal trial in New York City, author Tom Wolfe has one of the lead characters, Assistant District Attorney Larry Kramer, share an open secret about how juries are selected: “You get people who come into the jury box with their minds – how should I say it? – set in a certain way. ere’s a lot of Us versus em.”
In “e Bon re of the Vanities,” the big dividing line was race. In this week’s mammoth New York trial of former President Donald Trump on charges of falsifying business records in connection to hush money paid to an adult lm star, the yawning gap between “Us” and “em” is along partisan lines. at dynamic has already reared its head, as at least 50 jurors – representing more than half of the rst group of prospective jurors – were dismissed on the rst day of jury selection Monday because they said they couldn’t be impartial. e mass dismissal underscores the di culty of nding acceptable jurors and is just the rst obstacle facing the unprecedented prosecution of a former president that will leave a bad taste in many voters’ mouths from the unmistakable political undertones.
It should come as no surprise that it will be hard to nd jurors who don’t bring strong political predispositions to bear given that the motivation for bringing this case looks to be so transparently political. e circus that is the rst- ever criminal trial of a former president illustrates why this particular case may have been a poor choice to break that precedent.
Though seven were sworn in on Tuesday, there were still illustrations of the problems of a politicized jury pool. One potential juror who underwent questioning, for instance, was subsequently struck for cause a er Trump’s team found social media posts from the juror referencing Trump that say, “Get him out” and “Lock him up.”
Former US President Donald Trump attends the first day of his trial for allegedly covering up hush money payments linked to extramarital affairs, at Manhattan Criminal Court in New York City on April 15, 2024. Trump is in court Monday as the rst US ex- president ever to be criminally prosecuted, a seismic moment for the United States as the presumptive Republican nominee campaigns to re- take the White House. e scandal- plagued 77- year- old is accused of falsifying business records in a scheme to cover up an alleged sexual encounter with adult lm actress Stormy Daniels to shield his 2016 election campaign from adverse publicity.
Indeed, it seems unlikely that this case would be being prosecuted with the same vigor and creative legal theorizing if Trump were an everyday citizen. A er all, Manhattan District Attorney Alvin Bragg came into o ce promising to focus on the ongoing investigation of Trump, and would have likely felt political heat from New York Democrats had he decided to close the investigation without bringing charges.
In the end, as e New York Times reported in March 2023, Bragg’s o ce took a “circuitous and sometimes uncertain road” to ling criminal charges, reviving a dying investigation that originally focused on Trump’s business practices with a renewed focus on hush money payments.
To Bragg’s supporters, it’s a mark of his diligence and fortitude that he le no stone unturned. To his detractors, the drawn- out investigation, seeming to pivot from one potential crime to another, gives the impression of a DA looking for a crime to pin on an unfavored individual. ( Trump has pleaded not guilty.)
A er all, making hush money payments, as Trump is alleged to have done with former adult lm actress Stormy Daniels, isn’t illegal. Instead, the case is built around a rather aggressive interpretation of the relevant statutes: In his records, Trump recorded his reimbursement to former “xer” Michael Cohen, who handled the Daniels payment, as a legal expense. is deception would normally be considered a misdemeanor o ense in New York state.
But Bragg, unwilling to let Trump o the hook easily, is hinging his case on the allegation that this misdemeanor o ense was in service of a violation of federal campaign nance laws. e Federal Election Commission opted not to charge Trump with a violation of election law on this front, with two Republican commissioners noting that Cohen had already pleaded guilty in relation to the alleged violation, and further government action “was not the best use of resources.”
Former US President Donald Trump and attorney Susan Necheles attend a hearing to determine the date of his trial for allegedly covering up hush money payments linked to extramarital a airs, at Manhattan Criminal Court in New York City on March 25, 2024.
Another problem, as National Review’s Andrew McCarthy has pointed out, is that Bragg, a state prosecutor, is seeking to enforce a federal statute, bringing this case against an o ense “that the feds themselves did not believe Trump committed, and that Bragg is politically engineering into a new election law of his very own.”
Not that Trump is blameless in this. Trump’s manifest character aws and history of shady dealings are being highlighted, once again, by a trial that includes the phrases “hush money” and “porn star.” And even while this case faces significant legal scrutiny from lawyers and legal commentators, his other pending trials, such as his handling of classi ed materials at his Mar- a- Lago home or his attempt to bully Georgia election o cials in 2020, do run a much stronger risk of placing him in serious legal danger.
In a sense, it’s hard to blame the jurors who feel they can’t be impartial. For decades, Trump has been a xture on our airwaves, social media sites and political coverage. And his welldocumented celebrity, outrageous social media posts and charged political rhetoric make him a challenge for even the most sober- minded juror to treat as an individual rather than a politician.
Trump also has an unquestioned ability to push his supporters to defend the indefensible, even as he induces his opponents to stretch the envelope in their attempts to derail his candidacy. As such, no matter how the current trial is resolved, it will emphasize yet again how Republicans could – and, I would argue, should – have picked a presidential nominee with less baggage.
But they didn’t, and now many are feeling a rally- round- the- ag e ect in what is likely the rst and potentially only Trump criminal case that’s going to trial before Election Day.
If Democrats are so willing to come up with creative legal theories to keep him out of office, some voters may think that all their rhetoric about “constitutional norms” wasn’t as highminded as it sounded. e recent Supreme Court decision unanimously striking down Colorado’s attempt to remove Trump from the ballot was a reminder that too- cute attempts to keep Trump out of the White House can back re. And the imsiness of the hush money case will allow Trump’s supporters to downplay the seriousness of the other charges against him, making it less likely that they will have a signi cant political impact in November.
Bragg’s decision to bring this case, with its attenuated connection to an actual crime, can’t be taken out of its political context. The weakness of this case muddies the water for future e orts to attack Trump’s more egregious conduct. e jury selection and following court maneuverings will highlight how strong the disagreements are between “Us” and “em.” And Trump’s ability to push both his supporters and his detractors past the bounds of normal political battles, and to pull out all the stops to win, will remain unparalleled. Patrick T. Brown is a fellow at the Ethics and Public Policy Center, a conservative think tank and advocacy group based in Washington, DC.