By William Brangham,
@WmBrangham
Correspondent
Donald Trump is no stranger to courtrooms.
I’ve sat and watched him joust with prosecutors and judges many times this year, but what’s starting this Monday in Judge Juan Merchan’s courtroom in downtown Manhattan will be a historic first.
No former president has ever stood trial on felony charges. Certainly not a man who’s currently leading in several polls to win the presidency once again. Despite his legal team’s best efforts, Trump will now face the judgment of a New York jury.
These are some things I’m watching.
Who controls the narrative?
There’s going to be a lot of contradictory messaging flying around regarding what this case is really all about.
While the jury will hear lots of dry details about ledgers, invoices and retainer agreements, the tabloids will continue to dub this the “porn-star hush-money” case, and try to find every way they can to splash images of Stormy Daniels across their coverage.
As he has done in all his previous court appearances, Trump will continue to assert his innocence, and press his evidence-free claim that this case is another “witch hunt” orchestrated by President Joe Biden to derail his return to the White House.
Trump has turned his many court appearances this year into a regular part of his presidential campaign. Each day, on his way in or out of the courtroom, he’s greeted by a phalanx of cameras where he explains how unfair and unjust these cases are. This trial will likely be no different.
District Attorney Alvin Bragg hopes the jury, and the rest of the country,
sees something different in this case. While he’s charging Trump with falsifying business records, Bragg wants this case seen as an attempt by the former president to illegally tip the scales of the 2016 presidential election.
How will defendant Trump behave?
It’s hard to think of another defendant in America who’s been as verbally hostile towards the prosecutors and judges overseeing the cases against him.
At various times, he’s called these officials “racist,” “deranged,” a “slob,” and a “radical-left lunatic.” He called Bragg, the Black prosecutor leading this case, an “animal” who “doesn’t care about right or wrong.”
Following these insults, many of these officials have received death threats. Judge Arthur Engoron, who
oversaw Trump’s civil fraud trial in New York and levied a nearly half-a-billion dollar judgment against him, had a bomb threat called into his house and an envelope with white powder sent to his office.
At his arraignment for this case, Judge Merchan instructed Trump to "refrain from making statements that are likely to incite violence and civil unrest," but that
didn't deter the former president.
Merchan initially imposed a gag order that prevented Trump from making public statements meant to interfere with the case, including comments about witnesses and their testimony, prosecutors other than Bragg, court staff and any of their family members. When Trump began criticizing Merchan’s adult daughter, alleging that her work for an unrelated Democratic organization meant the judge had to recuse himself, the judge
expanded the gag order to make members of his own family, and Bragg’s, off limits.
“This pattern of attacking family members of presiding jurists and attorneys assigned to his cases serves no legitimate purpose,” Merchan wrote. “It merely injects fear in those assigned or called to participate in the proceedings that not only they, but their family members as well, are ‘fair game,’ for defendant’s vitriol.”
How Trump behaves in court, in front of the jury, and on social media throughout this trial will be something key to watch.
Will the jury be convinced?
Apart from all the heated rhetoric and talk of extramarital affairs, this case does come down to a relatively narrow set of allegations.
Did Donald Trump and his associates intentionally falsify private Trump Organization business records to obscure the fact that Trump was paying Cohen — not for legal services, but to reimburse him for the $130,000 he paid to Daniels just weeks before the 2016 election?
That $130,000 payment — as Cohen has affirmed in a separate legal case — was meant to prevent Daniels from revealing a story she’d been shopping around for a few months. Years before, Daniels said she had a consensual, one-time sexual encounter with Trump. The hush money payment came just weeks after the
“Access Hollywood” tape dropped. On the 2005 recording, Trump was heard bragging that his celebrity allowed him to grab women’s genitals at will.
These payments to Cohen were done via a series of checks signed by then-President Trump. They were accounted for in the Trump Organization’s various ledgers as legal feels that were part of a retainer agreement with Cohen. District Attorney Bragg argues those records were all falsified, and his prosecutors must now prove to the jury that they were done so on purpose, with a specific intent to defraud.
Under New York law, falsifying business records is a misdemeanor offense, but Trump is being charged with a felony.
“It's a felony when falsifying business records is done for the purpose of concealing or committing
another crime,” said Jerry Goldfeder, a senior partner at Cozen & O’Connor in New York. “That's what District Attorney Alvin Bragg has charged, that Trump falsified all these business records, because what he really wanted to do was to hide these facts to win the election.”
