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Some days we have to think about which item goes first. Most of the time presidential election items go first, then Senate elections, House elections, and finally everything else. Occasionally, it is a close call (e.g., if a major Senate candidate drops out, that outweighs most presidential news). This is not one of those close-call days, however. The biggest news story in the country, maybe the world, today will be Donald Trump's first criminal trial—assuming it really happens.
Trump has no doubt ordered his lawyers to do everything legally possible to make the trial not happen today, and preferably not until after the election, if at all. But assuming that Judge Juan Merchan has had enough of Trump's dillydallying, actual jury selection could begin today in Lower Manhattan at 100 Centre Street. The building is ugly, is encircled by scaffolding, and has the ambiance of an aging cafeteria. Still, Merchan's courtroom on the 15th floor will be the center of the media universe, if all goes as scheduled.
There will be a media frenzy that will dwarf anything O.J. Simpson, who died last week, ever experienced. Generally speaking, trials in New York are not televised, but the judge could make an exception. It is very unlikely that Merchan will do so. Security will be tight but court and law enforcement aren't talking about what they will do, other than protect the sanctity of the trial. Trumpers are expected to protest near the courthouse, but they are unlikely to get in, in part because their way will be blocked by reporters, photographers and video camera people from just about every media outlet in the known universe. Also agitators. Laura Loomer said she would be there with a camera crew to do interviews and appear on Steve Bannon's podcast. Plenty of demonstrators on both sides are expected, too.
While there will not be live audio or video from the courtroom, reporters in the room will be allowed to use their smartphones to live blog the proceedings. The New York Times has assigned ten reporters to the beat, including two of their top stars, Maggie Haberman and Jonathan Swan. Other major publications will undoubtedly have a goodly number of reporters and editors on the story as well. Will Fox even cover the story? We're not so sure. Here is the Fox Website as of yesterday:
As you can see, there are 19 stories there, none of them about the trial. Apparently John Goodman's physique, disappearing moms in Kansas, and Disneyland's plans to crack down on people lying about disabilities to cut the lines are more important than Trump's trial. If you look closely, many of the stories are designed to make "ordinary people" feel afraid that "they" are coming after them. The obvious conclusion is that only Donald of Nazareth can save them.
The process will begin with the voir dire today. Potential jurors will not be asked about who they voted for, but will be asked about their media-consumption habits, whether they have ever attended a political rally, and whether they are members of organizations such as the Proud Boys. The judge and lawyers will be on the lookout for people who may be biased, but want to monetize their jury time by writing a book or doing paid interviews after the trial. Each side has jury consultants to help out—for example, by searching social media for jurors' footprints there.
Alvin Bragg is about to become the most famous prosecutor in America. He hasn't given interviews about the case or done anything that could have the verdict reversed on appeal. He understands what he is up against and the massive spotlight he will be under. Bragg said: "I've been an officer of the court going on more than 20 years, and the way we comport ourselves is important." He did tell radio station WNYC: "The core is not money for sex. We would say it's about conspiring to corrupt a presidential election and then lying in New York business records to cover it up." Other than that, it's mum's the word. In this respect, he is like Jack Smith, who is also all business. This is the exact opposite of NY AG Letitia James, who loved being in the news during Trump's civil trial. She was willing to talk to anyone from The New York Times to the East Cupcake Middle School Reporter.
When the trial finally starts, one key witness will be Stormy Daniels. The judge might address her by her legal name, Stephanie Clifford, but it's still Stormy. She will be asked what happened that fateful day. She is quite articulate and will describe what happened in as much detail as the prosecutors want. Remember that Trump is not accused of having an affair, but of cooking the books to hide it in order to win an election. Still, the prosecutors have to first establish that Trump had something he wanted to hide. Daniels can testify to that.
Stormy Daniels is the warm-up act. Michael Cohen will be the star. He will testify that Trump instructed him to pay Daniels $130,000 for her silence and then reimbursed him for it. He will also testify that he didn't do any legal work for Trump, so records showing the payments for legal services rendered are false. Trump's defense will be to call him a liar, one who lied under oath, and say you can't trust him. Bragg will question him about why he lied under oath. He will say it was to protect Donald Trump. The lie was about how many times Cohen had spoken to Trump about the failed Trump Tower Moscow project. Cohen said it was three times. It was really 10 times. Will the jury believe that lying to protect Trump years ago disqualifies Cohen as a witness? We'll see. Trump is not taking any chances, though. On Saturday on his boutique social media site, he attacked Cohen (in violation of the judge's gag order), presumably in an attempt to influence any Trump supporters who might make it into the jury. It is very likely that Bragg has some corroboration about what the payments to Cohen were for. He may have gotten testimony earlier from former Trump Organization CFO Allen Weisselberg, for example. Or maybe from some other Trump Organization employee. In a recent interview, Cohen said there would be surprises in the trial.
In addition to all this, Trump has a Pecker problem. Former National Enquirer publisher David Pecker was involved in an effort to "catch" and then "kill" stories that could harm Trump's campaign. In particular, he paid off Playboy model Karen McDougal $150,000 to buy her story of a 9-month affair with Trump and then not publish it. Pecker is likely to be called as a witness. He can certainly testify that Trump was actively trying to suppress stories about the candidate's various extramarital affairs. He may or may not know the details of the deal with Daniels, but he can corroborate Cohen's story that Trump was trying to buy the silence of people who could damage him. And unlike Cohen, Pecker has never been convicted of perjury and doesn't have a credibility problem.
Another likely witness will be Hope Hicks. She can testify to Trump's state of mind during the campaign. For example, if she testifies that Trump was very worried about the affair with Daniels ruining his election chances, that would provide the motive for the crime. She was very close to Trump and probably knows a lot about the deals with Daniels and McDougal. There could also be unexpected witnesses, as Bragg has been very quiet about his plans. Other potential witnesses are McDougal, Daniels' attorney Keith Davidson, and even the doorman at Trump Tower, Dino Sajudin, who Pecker tried to pay $30,000 to kill a potential story about "Trump's love child."
Trump has said he plans to testify himself. His lawyers will tear out their hair if he does. He will almost certainly commit perjury if he does and will be easily misled by prosecutors' questions. The lawyers will do everything possible to keep him from being on the witness stand. That said, he's the client, so if he insists...
The trial itself will affect the campaign BIGLY. Defendants are normally required to be present during a criminal trial. Trump could ask the judge to be excused, but the judge is not obligated to grant the request. If he doesn't ask or he does ask and the judge refuses, Trump will have to be in the courthouse Mondays, Tuesdays, Thursdays, and Fridays for 6-8 weeks. This will limit his campaigning to Wednesdays, Saturdays, and Sundays, plus possibly some evenings. Even with his own jet, it would be difficult to get to Wisconsin and back in an evening and Trump is known to hate sleeping anywhere but his own bed (presumably in Trump Tower during the trial). However, he can hold press conferences before and after each day's court session.
Trump often complains that he is being treated unfairly. In reality, he gets away with things that would put any other defendant behind bars before the trial. Here are just a few of the ways he has advantages over ordinary defendants:
So basically, Trump has been treated extra-gently during the entire process. That could stop today, though, when the actual trial begins.
One last thought here. Bragg knows that there is a chance of a hung jury, which would look terrible on his record, so at the last minute he might offer Trump a plea deal: Plead nolo contendere to misdemeanor falsification of business records and pay a substantial fine. Trump would likely take it to avoid being labeled a convicted felon. (V)