The Trials of Donald Trump: Season One

In which I answer some common questions about the jury, the case, and the conviction and sentencing

Donald Trump arrives at a Manhattan Courthouse. Photo courtesy of People

I’ve got a few hours before my own big moment of truth (it’s the anatomy exam day for my baby at 20 weeks!), and while I’m thousands of miles from Manhattan, I still feel connected to what’s about to begin in a dingy, poorly lit courtroom there.

I’m calling this “Season 1 of the Trials of Donald Trump.” It’s rather fitting because, if you recall, the Manhattan DA’s indictment was the first to drop just over a year ago. Not long after, however, the 34 NY state felony counts for falsifying business records were overshadowed by more serious charges in Florida, D.C. and Georgia. Everyone seemed to forget about Manhattan.

But as I said on Friday, don’t sleep on this case. We’re going to learn quite a bit about how criminal justice operates inside a courtroom when Donald Trump is the defendant, and as I’ve said before, a conviction here is likely.

It’s helpful at this point, I think, to answer some of the bigger questions that readers have posed in comments or emails about this case. I’ll break these down by broad subject matter: the jury, the case, and the conviction and sentence.

The jury

The number one question I get about the jury is along these lines: What happens if a hard-core MAGA juror gets on the case and refuses to convict? 

This is of course possible. But it’s not likely. The District Attorney’s office is going to have plenty of opportunities to ferret out this kind of juror, and the jury questionnaire will be quite helpful. 

Think of the average Trump die-hard. You might picture someone in a red MAGA cap, a person who watches Newsmax and Fox regularly, who drives hours to see their favorite guy at a rally. Perhaps they listen to the War Room podcast and have volunteered in the past for the Trump campaign. Maybe they follow Trump on Truth Social and receive emails from his campaign regularly.

That kind of person isn’t going to get on the jury, at least if they are answering the jury questionnaire truthfully. (And jurors who lie about their affiliations often crumble when asked directly in person during voir dire.) Judge Merchan’s jury questionnaire asks jurors to reveal all manner of connections to pro- or anti-Trump political organizations, social media feeds, attendance at rallies, etc. People who are in QAnon, the Proud Boys, or for that matter Antifa aren’t likely going to get past the first screening.

This isn’t to say that a Republican Trump voter, rare as they are in Manhattan, won’t somehow make it on the jury. But political affiliation and how you have voted in the past isn’t really a good reason to boot someone off, and Trump voters have convicted plenty of January 6 defendants in places like D.C. A right-leaning juror who occasionally listens to the extremist podcaster Tim Pool was kept on the jury in the first E. Jean Carroll case, over the objection of the plaintiff’s counsel, but he still voted with everyone else on the jury to find Trump guilty of sexual assault and award that first $5 million.

The judge will excuse anyone for cause if it’s clear they can’t be impartial. And if the DAs are feeling doubtful about anyone who gets past this point, they can use what’s called a peremptory challenge to boot them off anyway, no questions asked.

The other thing to remember is that one bad juror can’t cause an acquittal of Trump. That takes all twelve jurors to agree. At most that person can dig in and cause a hung jury. Again, this is possible, but it’s rare. And Alvin Bragg can decide to retry the case before a new jury if it comes to that. 

But in the jury room, such a person would be under incredible pressure to explain why Trump is not guilty beyond a reasonable doubt, based on the evidence, when everyone else is in accord. So the presentation of the case will matter a great deal, even to a juror who might otherwise be favorable to Trump.

The case

The question I most often see about the case concerns its importance. So what, folks often remark, if Trump gets slapped with a conviction for a “paperwork” crime over an extra-marital affair, right? This isn’t going to change anyone’s mind about him come November, and his followers will be even more loyal to their poor, victimized leader.

It doesn’t help that the media likes to short-hand this as the “hush money” case, which makes the indictment feel personal, salacious and tawdry rather than meaningful and substantive. On Friday, in a thought experiment piece, I showed how if the tables were turned and Hillary Clinton had attempted the same cover up of scandals, the press and the public would never let it go. But this is Trump, so he’s given far wider latitude. 

There’s another way to look at it, one that Trump himself has alluded to as if it’s a badge of honor. It involves the mobster Al Capone. The government didn’t take down Capone for ordering hits on people. He was convicted over a “paperwork” crime: tax fraud. Paperwork crimes can result in felony convictions and criminal penalties, even for big mob bosses like Capone… or Trump.

Because this is a paperwork crime with a clear paper trail, it means two things. First, the case will often be a dry, tedious and boring presentation of financial records and accounting, including checks, ledgers and the like. Second, this kind of case is far easier to make because paper doesn’t lie.

What does lie are people. The explosive parts of the case will feature witnesses who will testify about the scheme to bury the scandal before the 2016 election. This will include Trump’s fixer, Michael Cohen, who already served time for his involvement in the scheme. Trump’s lawyers will seek to undermine the credibility of Cohen as a felon and a known liar, but it will always come back to this: Cohen was lying on behalf of Trump. Now Cohen wants to clear the record.

The witnesses will also include people like David Pecker, former publisher of the National Enquirer and friend of Donald Trump. Pecker’s testimony will be key in many ways. The most salient will be to establish that what Trump did to pay off Stormy Daniels was part of a pattern. Pecker worked with Cohen in the past on a “catch and kill” scheme to buy the silence of witnesses through cash payments. When Trump’s lawyers try to deny that the payoff to Daniels ever happened, they will run into the fact that this was Trump’s standard operating procedure with other people he wanted to keep quiet, including Playboy model and actress Karen McDougal. As a bonus, there’s even an audio tape of Trump scheming with Cohen to catch and kill the McDougal story.

That catch and kill scheme will matter in another way: It will highlight how Trump was duping and hiding things from the American public that would have been damaging to him and might have cost him the election. His rich and powerful friends were there to help him out, and the scheme actually worked. As the press reports on the case and about how Trump hid the truth through these schemes, this will sound more and more like a case about illegal election influence than it will an extra-marital affair.

Then there’s the affair itself, of course, which Trump to this day denies ever happened. Stormy Daniels likely will testify that not only did it happen, she also directly received the payoff from Michael Cohen and was told to keep quiet about it and to deny it ever occurred. Caught and killed, as it were.

Is the jury expected to believe Cohen paid her off out of his own pocket, with no expectation of being paid back by Trump? That he even took out a home equity loan to do it because, what, he’s just such a generous guy who wanted to help his friend? The money he received—enough to cover the payoff, his tax liability, and a bonus for a job well done—will be pretty hard for the Trump team to explain away. And the checks have Trump’s own signature on them.

The evidence will show what the indictment alleges: that to help himself win the election, Trump had his fixer Cohen pay off Daniels through an unreported illegal campaign contribution, then when it came to paying Cohen back, conspired with him to cover it up as if it were for legal services.

The conviction and sentence

Given the above, I remain optimistic that we will see a guilty verdict, and Judge Merchan will then need to consider Trump’s sentence. It has always struck me as rather foolish for Trump to repeatedly antagonize the judge, and even doxx and threaten his daughter, when Merchan is the one who has the discretion of what sentence to impose.

At the risk of getting out over my own skis here, there are a few things to consider around the sentencing. While the law permits a jail sentence of up to four years, it’s not required. Trump is a first time offender, and there will be many considerations. Among these will be any sign of remorse, which we are unlikely to see from Trump. Another will be his advanced age and health. And yet another is how others who have done what Trump did have been punished. Fair is fair.

Don’t hate me for this: I could see the judge ordering probation instead of jail, which will make many of Trump’s detractors howl, but we should be prepared for that possibility. I could also see a one or two year jail sentence or even more. Although there are 34 counts, this is only because they were broken up by separate checks that all pretty much relate to the same criminal scheme and cover up, so I can’t see Judge Merchan treating them all as distinct instances with each punishable up to the full amount.

But no matter what the sentence is, it seems unlikely that Trump will be ordered to jail pending appeal. There may be restrictions placed upon him, but we shouldn’t expect that a guilty verdict and sentence means Trump goes behind bars immediately, as satisfying as that would be.

But a felony conviction of Trump will drive yet another deep wedge into the Republican Party. Its leaders will have to choose between supporting the rule of law and the verdict of the jury on the one hand, or choosing lawlessness and the rule of one man on the other. Voters will have to explain to their children and their families why they still support a man convicted on 34 felony counts. And importantly, the undecideds and the Nikki Haley Republicans will weigh whether they really want to side with the felon who might go to prison soon when they cast their ballots.

And that’s just Season One. There are still three more trials to go. Season Two, on set in D.C., may even finally premiere this fall, right as we head into the November election.