How Trump’s first criminal trial will work
Amid a fiercely competitive 2024 election rematch against incumbent President Joe Biden, former President Donald Trump will become the first former president put on criminal trial.
Trump faces felony charges in four cases, but the first one to go to trial — and perhaps the only one likely to be completed before Election Day in November — is a case in Manhattan concerning the alleged mislabeling of payments to adult film actor Stormy Daniels on the eve of the 2016 election. Daniels has said she had an affair with Trump.
Trump is charged with 34 counts of falsifying business records to cover up a $130,000 payment to Daniels (whose real name is Stephanie Clifford) made through Trump’s then-attorney Michael Cohen. Manhattan District Attorney Alvin Bragg is prosecuting the case. Jury selection is set to start Monday. On its own, falsifying records in the second degree is a misdemeanor. However, the charge transforms into a felony if the person accused is convicted of falsifying business records with the intent to commit another crime or to aid or conceal a crime committed. The upgrade would make the crimes Class E felonies, New York’s lowest level.
“Paying hush money is not illegal. People can disapprove of it, but it’s not illegal,” said Jon Sale, a criminal defense attorney in Miami and a former Watergate prosecutor.
Rather, Trump is accused of having made false entries in financial records to further another crime.
“Why did Donald Trump repeatedly make these false statements?” Bragg said when he announced the charges. “The evidence will show that he did so to cover up crimes relating to the 2016 election.”
Bragg said Trump’s actions “violated New York election law, which makes it a crime to conspire to promote a candidacy by unlawful means.” He also said the wire payment exceeded the federal campaign contribution cap and falsified financial statements violated New York law.
The number of charges refers to 34 documents the grand jury found to have contained a “critical false statement” related to the payments. The counts also include documents related to Karen McDougal, a former Playboy model who said she had an affair with Trump, which Trump has consistently denied.
Trump has three other active criminal cases: one Georgia case involving election interference, a separate federal case on election interference and a federal case on document retention. He has also faced a civil trial in New York over inflated valuations of his businesses. In that case, Trump was found liable but is appealing the verdict.
How will jury selection work? Can lawyers screen for pro- or anti-Trump bias?
Citizen residents of Manhattan will comprise the jury. Even though Trump lived in the borough for much of his adult life, Manhattan probably is not a favorable jury pool for Trump: Biden won 86% of the vote there in 2020.
During jury selection, attorneys on both sides will be able to ask potential jurors questions to see whether they have fixed notions about the case that would keep them from ruling impartially.
The juror questionnaire posted by the court includes such questions as the prospective juror’s news and social media consumption habits; whether they have supported or belonged to anti-government groups or identified as QAnon; whether they have attended a Trump rally or signed up for a proTrump newsletter; whether they have read his books; and whether they “have any feelings of opinions about how Mr. Trump is being treated in this case.”
Sale said that even though the test is to put one’s beliefs aside “and only decide based on the facts and the law,” getting a fair jury will be a challenge for the defense.
However, Trump’s ace in the hole is that he needs only one holdout.
“Mr. Trump is not going to find 12 jurors in Manhattan to unanimously acquit him,” Galluzzo said. “However, he wins, as a practical matter, if he can convince one juror out of 12 to have reasonable doubt.”
If that happens, the judge would declare a mistrial, and it’s highly likely that Election Day will fall before the retrial. That outcome would benefit Trump.
Trump said Judge Merchan’s gag order is ‘wrongfully attempting to deprive me of my First Amendment Right to speak out against the Weaponization of Law Enforcement.’ What do experts say?
Trump omits that the order still allows him to criticize key people with power in the prosecution.
Judge Juan Merchan’s April 1 gag order barred Trump from speaking about witnesses or counsel in the case other than Bragg or about members of the court staff or their family members if those statements are made to interfere with the case. In other words, Trump can still criticize Bragg and Merchan. Even though the federal government is not prosecuting Trump in this case, Trump also maintains his right to call it a “Biden trial.”
Trump’s lawyers have challenged the gag order, and courts will have the final say. Legal experts agreed that Trump should not be allowed to make comments that incite violence. But beyond that, we heard mixed opinions about the gag order.
Sale said one potentially unfair aspect of the order is that although Cohen has frequently talked about the case on television, outside of court, Trump cannot rebut what Cohen says.
However, experts said the law supports gag orders.
“This case law goes back decades,” said Stephen Gillers, a New York University School of Law professor. “Merchan followed it.”
Duncan Levin, who worked in the district attorney’s office before Bragg and is now a defense attorney, agreed with Gillers. Gag orders “with very limited exceptions have long been found not to violate the First Amendment,” Levin said. Trump “is free to discuss the criminal justice system but not to make ad hominem attacks on particular people associated with the case,” Levin said.
The First Amendment does not protect all speech, said Steven Friedland, an Elon University law professor and former assistant U.S. attorney for the District of Columbia.
“Political speech and ideas are the most highly protected, although they are still not without limits,” Friedland said.
“The judge is attempting to protect political speech while at the same time protecting the fair administration of justice.”