Move over O.J. A trial like no one’s ever seen.
Hush. It’s not about money. The Donald Trump trial that begins jury selection in Manhattan today is about what elevates payments funneled to a porn star through a shall company to the level of felony.
A once-skeptical Mark Joseph Stern explains at Slate, “The falsification of business records is, by itself, a misdemeanor under New York law, but it’s a felony when it’s done with the ‘intent to commit another crime or to aid or conceal the commission thereof.’” Manhattan District Attorney Alvin Bragg’s pretrial briefing erased Stern’s doubts left over from the initial indictment.
Stern writes:
Bragg has argued, convincingly, that the former president intended to violate at least two election laws—one state, one federal. First, Bragg asserted that Trump and Cohen ran afoul of the Federal Election Campaign Act by making unlawful campaign contributions (in the form of a payoff) at the direction of a candidate (that is, Trump). Cohen already pleaded guilty for this very act in federal court, so it is hardly a stretch to accuse Trump of intending to break the law by participating in the crime. Second, Bragg argued that Trump ran afoul of a New York election law that forbids any conspiracy “to promote or prevent the election of any person to a public office by unlawful means.” The district attorney claimed that Trump intended to violate this statute by committing fraud in order to secure his own victory in 2016.
There is nothing especially creative about these theories; they are not an example of prosecutors stretching the law to its breaking point so it can fit over the facts of a questionable case. The application of both federal and state election codes, and their interplay with the underlying violation of New York’s business records law, is straightforward. Really, the only half-plausible argument that Trump could mount in opposition was that the Federal Election Campaign Act somehow preempted the use of New York’s own statutes to punish election-related record-keeping fraud, meaning he would be liable only for misdemeanor record-keeping violations. Two different judges rejected this claim: Juan Merchan, who’s overseeing the state trial, and Alvin K. Hellerstein, who shot down Trump’s short-lived play to remove the whole case to federal court.
Stern had hoped one of the other cases about the election would reach court first, and before this fall’s elections. But this case “is about the election—albeit the one in 2016, not 2020.” The other three cases against the slippery Mr. Trump have been delayed by “a corrupt judge, a foot-dragging Supreme Court, and a district attorney’s questionable conduct in an already complex case,” Stern explains, leaving this one to start this morning in a New York court “less susceptible to political interference than the federal courts” have proved.
Bragg’s prosecution stands for the simple proposition that a rich and powerful man like Trump cannot disregard his legal obligations as a candidate for office in a constitutional democracy. He cannot avoid consequences by asserting, under the thin guise of various legal doctrines, that he is forever immune from his day of judgment because he was once president, and he is rich.
Finding jurors capable of judging without bias a former president, the first ever in this country to face a criminal trial, begins this morning. Each prospect will have to answer 42 questions Justice Juan Merchan has prepared.
Politico explains the process and systematically walks readers through what deeper beliefs hope to tease out of prospective jurors:
A starting point is identifying prospective jurors with strong feelings about Trump, his presidency and the criminal cases he faces. Each side wants to figure out whether any potential jurors actually know Trump, worked for his businesses or have a direct relationship with him or his family members. But mainly, the lawyers are trying to suss out any inherently strong feelings — positive or negative — about Trump.
Merchan, on the other hand, says he wants to limit efforts to determine whether prospective jurors like or dislike Trump.
“Such questions are irrelevant because they do not go to the issue of the prospective juror’s qualifications,” he wrote in an order last week finalizing the questionnaire. “The ultimate issue is whether the prospective juror can assure us that they will set aside any personal feelings or biases and render a decision that is based on the evidence and the law.”
This is Donald Trump we’re talking about. Anything might happen. A jury might exonerate him. “But most experts don’t think it will,” Michael Tomasky writes at The New Republic.
Tomasky writes:
But faith in the jury system is high. That may well be especially so in a case like this one, which until this week has been, to your disinterested observer, a partisan circus. But a jury’s verdict has an authority and finality for these Americans that a Sean Hannity rant or a New York Times editorial lacks.
“So, with any luck, by Memorial Day or so,” Tomasky adds, “we’ll be able to write the phrase that has been crying to be written for about 35 years: ‘Convicted felon Donald Trump.’”
Trump himself is terrified, say those who know him. Even if he’s elected president — and it’s clear one of his major motivations for running is to keep from living out the rest of his life behind bars — presidential pardon power does not extend to state law. His base is already shaky. If he’s a convicted felon going into November, multiple polls show Trump’s support will erode further, and he knows it. Half the country already believes him guilty in the Manhattan case. Trump and his closest allies are already working up plans to declare the election stolen and seize power no matter how badly he loses.
Americans face a choice this fall not between two old men, but between two futures for our “government of the people, by the people, for the people.” They must decide whether or not it shall “perish from the earth.” Lincoln presented that choice at Gettysburg amidst a civil war for the preservation of the union. That conflict was between a new people dedicated to the theory (still unrealized today) that all are created equal and a faction of rump royalists unwilling to see feudalism die finally and for good.
The irony in the wake of Trump’s disjointed reflections on Robert E. Lee at Gettysburg over the weekend is that that civil war is still engaged. Trump’s “forces” on Jan. 6, 2021, fought a pitched battle on the steps of and inside the U.S. Capitol to undo what the Confederates conceded at Appomattox in 1865. Trump’s allies have surrendered any legitimacy as moral actors in this democracy, yet fight on to replace it with an older system of government by hereditary royalty and landed gentry. Or simply by a dictatorship.
They’re fine with dictatorship. Even if the dictator is in prison.
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