The United States will cross a historic threshold on Monday when for the first time a former president goes on criminal trial in a case laced with fateful significance because Donald Trump could be back in the Oval Office next year.
When the presumptive GOP nominee walks into court for the start of jury selection, he and the country will enter a new state of reality as legal and political worlds collide in a trial almost guaranteed to deepen Americans’ bitter ideological estrangement.
The trial, related to hush money payments to an adult film actress before the 2016 election, will mark yet another extraordinary twist in the story of Trump, whose incessant testing of the limits of presidential decorum and the law has caused nearly nine years of political tumult and may still have years left to run. It raises the possibility that, depending on the jury’s verdict, the Republican nominee in the 2024 presidential election could be a convicted felon. And given the case’s subject matter — details about a payment to a woman who alleged that she had a sexual relationship with Trump, which he denies — it could reflect poorly on Trump’s character and ethics as voters weigh their decisions in November.
Hush money payments are not illegal. Trump is accused of falsifying business records to keep unflattering information that could have hurt his campaign from the voters in an alleged early example of election interference. The fact that this case stems from alleged personal conduct means that it could have a lesser political impact than Trump’s three other looming trials, which are rooted in greater constitutional and legal concerns pertinent to the powers of the presidency.
But the success of the ex-president’s legal delaying tactics in the other cases — related to his attempts to overturn the 2020 election and hoarding of classified documents — means the hush money trial may be the only one to take place before the election. And Trump — though he is entitled to the presumption of innocence and the airing of evidence like any other defendant — is showing signs of increasing agitation at the prospect of the trial and the indignity it represents for someone who used to be the most powerful man in the world.
Still, if he had to choose only one of the quartet of cases to reach a conclusion before the election, it would be this one.
The United States, unlike democracies that have been historically less stable, is not a nation accustomed to seeing its former heads of state on trial. While the circumstances of this case and Trump’s broader legal troubles are unique, this new precedent does open the possibility that it will be less of a leap for future presidents to be pursued by legal investigations. Indeed, Trump has already warned that if he wins in November, he will dedicate his second presidency to “retribution” and will use the powers of the presidency to go after his foes, including the Biden family.
None of this is remotely normal. But it is all part of the extreme political, legal and constitutional challenges that Trump constantly poses to US institutions and that he is signaling would intensify if he wins a second term. The incessant cacophony stirred by his volcanic personality is by design — it makes it hard for Americans to process each distinct Rubicon that is crossed.
Trump has sought to taint the trial before it even begins
The former president has made fervent attempts to delegitimize the case, the judge and the legal system itself — partly to hedge against any future guilty verdicts. He has blasted Manhattan District Attorney Alvin Bragg, a Democrat who is leading the prosecution, as politically biased. And Judge Juan Merchan expanded a gag order after Trump named his daughter, who has done work for Democrats, on social media.
While the trial will not be televised, it is bound to be a national spectacle over the period of six weeks to two months that it is expected to last. In his previous civil trials, including a massive fraud case that went against him, Trump has used court breaks to stage free rolling and often angry televised news conferences, seeking to attack the probity of the court and to air issues in the case. He has often been an obstreperous defendant, infringing the behavioral codes of the courtroom and infuriating judges. At one point during the civil fraud trial, Judge Arthur Engoron admonished Trump for turning the courtroom into the campaign trail, and asked his attorney, “Can you control your client?”
For all of Trump’s claims of unfair treatment by the legal system, many other defendants would likely have faced far harsher treatment for their attacks on trials, prosecutors and court officers.
While the Manhattan trial is in session four days a week, the ex-president will be required to attend — at a time when President Joe Biden will be free to blitz swing states. This is one reason why Trump’s 2024 campaign is running as much through the courtrooms as according to the traditional rhythms of a White House bid.
Trump knows his fate is not his to control
The moment Trump shows up in the courtroom on Monday will be one of unfathomable drama and a test for members of the pool of citizens who will be vetted for service on a jury like none other in American history. “He’s the most famous person in the world. And when you’ve come face-to-face with somebody that’s got that kind of charisma, that kind of power, it tends to be intimidating, it tends to be shocking, it tends to be exciting,” Robert Hirschhorn, a jury and trial consultant, said on CNN on Friday.
The task of finding jurors who lack strong opinions and prejudices against a defendant and the legal system, who can serve for a prolonged period and will make judgements solely based on the law and the evidence, is complex in any case. Because the accused is Trump, legal experts are predicting that jury selection could take as long as a week or more, which must conclude before prosecutors lay out their opening arguments against the former president.
But as he contemplates the beginning of his trial, Trump appears to be gleaning an understanding that his fate is now out of his hands and will be soon in those of 12 anonymous citizens whom he will not be allowed to bully, persuade or politicize. “Jury selection is largely luck. It depends who you get. It’s very unfair that I’m having a trial there,” Trump said on Friday, alluding to New York City’s liberal lean.
Trump is already seeking to turn the trial into a circus to further his merged legal defense and chief campaign argument that he’s being persecuted by “deranged prosecutors” trying to bar his return to the Oval Office. He branded himself as a “proud political dissident” at the Conservative Political Action Conference in February and has compared himself to South African anti-apartheid hero Nelson Mandela and dead Russian opposition leader Alexey Navalny. On Saturday night in the swing state of Pennsylvania, Trump promised, “I will be fighting for the freedom of 325 million Americans,” as he embarked on an unprecedented shuttle between a criminal trial and the campaign trail. On Sunday, he used his Truth Social network to blast “a blatant and unprecedented attack” against his campaign and claimed that Biden coordinated with Bragg. There is no evidence that this is true.
Trump’s arguments are convincing to many Republican voters who embraced his narrative of persecution and made him their nominee in quick time this year. But will he be able to convince undecided general election voters that he’s a victim, or will his first trial thicken a cloud of criminality that could doom his White House hopes and improve Biden’s chances of landing a second term? Some polls have shown that a minority of Republican voters might have pause about voting for the ex-president if he is found guilty after a trial. But the circumstances are so unusual that it is impossible to predict how the politics of a conviction or an acquittal could play out.
Political uncertainty over the case is being exacerbated by the charged backdrop. There is no clear leader in national polling in the race between Biden and Trump, which is likely to be decided by thousands of votes in a handful of battleground states. The president’s prospects are being challenged by high interest rates and elevated prices that are causing pain for millions of Americans. Biden spent the weekend presiding over a successful defense of Israel after Iran sent hundreds of missiles and drones toward the Jewish state as fears of a wider Middle East war spiked. The deteriorating situation could bolster Trump’s claims the world is spinning out of control under his successor’s watch. That means that this and any future Trump trials — while a never-before-seen interruption to a presidential election campaign — may be only one factor that decides the destiny of the White House in November.
Prosecutors have telegraphed their case but Trump’s team is yet to show its cards
Trump is charged in Manhattan with falsifying business records to cover up a hush money payment to adult film star Stormy Daniels in what prosecutors said was an attempt to interfere in the 2016 election. Trump has pleaded not guilty and has denied having an affair with Daniels.
“Manhattan is home to the country’s most significant business market. We cannot allow New York businesses to manipulate their records to cover up criminal conduct,” Bragg wrote as he unveiled the indictment — Trump’s first — in April 2023. “The trail of money and lies exposes a pattern that, the People allege, violates one of New York’s basic and fundamental business laws.”
Trump’s supporters claim that he’s a victim of selective and politicized justice because he is being prosecuted over what they contend is a novel legal theory in a case stemming from personal embarrassments and campaign finance infringements. But Bragg’s framing of the case identifies a common theme with Trump’s other indictments: Is a president accountable to the same laws as every other citizen, or he is above the law?
“This payment was made to deprive voters of essential information, which in turn was covered up with the intent to affect an election. … That’s the allegation – deceiving voters to grasp power,” said Norm Eisen, a CNN legal analyst and author of the new book “Trying Trump: A Guide to His First Election Interference Criminal Trial.”
Eisen added: “Now, Alvin Bragg might not prove it — but that is why this is an alleged election interference case.”
Trump’s attorneys have argued that this trial should be delayed until the Supreme Court rules on his sweeping claims of presidential immunity arising from the federal election interference case brought by special counsel Jack Smith. While the initial conduct at issue in this case took place before Trump was president, prosecutors argue that he signed off on the alleged cover-up to reimburse his lawyer Michael Cohen for phony legal services while president.
As part of a desperate flurry of filings designed to postpone accountability in the hush money case, the former president has also been claiming that he cannot get a fair trial in New York — the city where he made his name but that has overwhelmingly voted against him. Merchan has declined efforts by the president’s attorneys to get the trial relocated to a jurisdiction where voters may be more favorable to Trump.
The former president is charged with 34 felony counts of falsifying business records in the first degree. If convicted, he could face probation or a maximum sentence of 1 1/3 to 4 years on each count in state prison. Many legal experts believe that, as a first offender, Trump would not face jail time, or that if he did, any custodial sentences would run concurrently.
Trump’s attorneys have not tipped their hand over possible defenses. But it’s almost certain they will attack the credibility and personal testimony of both Cohen and Daniels. Cohen will face criticism for being an unreliable witness after spending time in prison after being convicted of tax offenses, of lying to Congress and other offenses.
