New York vs. Donald J. Trump - Day 1
The first criminal trial of a former president is about to begin.
April 15, 2024 will be a landmark date since it is the first time that a former president is put “in the dock” in a criminal trial technically about falsifying business records of reimbursement of Michael Cohen for payments he made to Stormy Daniels to prevent her from going public about her sex encounter with Trump in 2006. Cohen was then acting as an attorney for Trump and made the payments to Daniels on his behalf.
Now the first thing to notice about this case is that, like so many things involving Trump, he and Cohen made very poor decisions in how to handle what was a settlement payment with Daniels. If Trump and Cohen had decided to have the Trump Organization make a payment directly to Daniels as a settlement of a dispute concerning Trump’s prior involvement with her, with a General Release and Non-Disclosure Agreement, there would not be any basis for a charge of falsifying business records. The payment, labeled as a settlement payment would be exactly that, and no falsifying records issue would be present. But Trump, Cohen and Allen Weisselberg, who was the CFO and the man who structured the payment arrangement, were all too cute in thinking the payment could not be traced to Trump if paid by Cohen. But Cohen was Trump’s lawyer, and it did not take much imagination to think that a payment from Cohen was actually a payment by Trump.
I am sure the Trump Organization entered many settlement agreements with releases and non-disclosure agreements, so the direct payment to Daniels would have been lost among the many other settlements. Instead their payment and reimbursement arrangement is what this trial is all about as the records were falsified to further “hide” Trump’s involvement. But it didn’t work, and now Trump is in the dock facing the potential of four years in prison.
Justice Merchan is facing a herculean task keeping the trial moving forward without outbursts and distractions, mainly coming form the defendant. Though Trump may stay quiet during jury selection, when the witness testimony starts, it is hard to believe Trump will be able to control himself when Daniels and Cohen testify, and one can expect outbursts from Trump. Justice Merchan has a reputation for not tolerating outbursts from the defendants and particularly not from Trump. So, Trump may run the risk of motions to hold him in contempt of court either made by District Attorney Bragg or by Justice Merchan himself. Will his attorneys be able to control him; that is doubtful from events in Trump’s two civil trials: the fraud and defamation cases. Justice Merchan may wish that he could use the British or Russian system of having the defendant stand in the dock, preferably with glass enclosures.
News reports suggest that Trump’s attorneys will again seek to delay the trial with frivolous motions and a take a confrontational position even on evidence admission. But if they do so, they will likely alienate the jury, as jurors want to take the trial seriously and to have it be over as soon as possible. So, such tactics may backfire in antagonizing the jury. Not a good idea.
Trump has announced that he may testify, waiving his Fifth Amendment rights. He apparently thinks he can persuade the jury of his innocence on the charges of falsifying business records. But on cross-examination, he will be shown records that have his name, and perhaps his signature on them approving of payments, so his testimony may only serve to convince the jury that he is guilty. In light of Trump’s tendency to lie, he may join his former employee, Mr. Weisselberg, serving time on a perjury charge for deliberately false testimony. Trump’s lawyers, lead by Todd Blanche, probably do not want Trump to testify, but they may have a hard time convincing their client to remain silent.
Trump is reported to think this trial can serve to promote his candidacy for election to another term in the Oval Office. He thinks he can play to his cult voters and by playing the martyr and taking on other roles, he can gain favorable reviews by the Trump cult, including the Trumpian members of Congress. If he keeps his acting out to outside the courtroom, he may win points with his cult, but if he acts out and is disrespectful to Justice Merchan, juries do not like such conduct and will hold it against Trump. Judges in jury trials are often seen as father figures as they are solicitous of juries and want them to be protected from inappropriate behavior of counsel or parties, so Trump outbursts against the Judge will cause jurors to favor the Judge over any Trumpian objections.
Trump’s niece, Mary Trump, does not think that Trump can restrain himself as she says he acts like a child, complete with temper tantrums. Trump’s outbursts in this case may exceed his reaction to evidence in the civil fraud case, but I doubt Justice Merchan will tolerate any of such behavior from Trump. And Trump needs to understand that if the jury finds him guilty as charged, it will be Justice Merchan who decides his sentence: fines or incarceration or both. Most defendants do not want to alienate the judge who will determine their sentence and their fate. What will Trump do? When the trial commences after jury selection we will know.