Trump’s First Criminal Trial by Jury

Welcome back to The Collision, and get ready with us for the trial of the … well maybe not “the century.” But the way things are going, Donald Trump’s hush-money trial in New York may be the trial of the year for the presumptive Republican nominee if for no other reason than it could be the only criminal trial he’ll have in 2024. We’ll get into what to expect, plus a read on special counsel Jack Smith’s busy schedule in the weeks ahead.

The Docket

• After seemingly annoying the special counsel over her order on jury instructions, Judge Aileen Cannon has thrown a bone to Jack Smith in the federal classified documents case in Florida. In a ruling Tuesday, Cannon partially granted Smith’s request to redact the names and identities of government witnesses in a cache of discovery documents that Donald Trump’s defense team sought to unseal. While Cannon expressed some skepticism of Smith’s argument for a blanket protection and said she will still allow for witness testimony to be unsealed, the ruling is a reversal of her February decision to grant the defense’s broad disclosure motion. It also is a step toward clearing the backup of pretrial motions that risks pushing the start date for Trump’s trial even further.
• Trump made an appearance this week in Fulton County, Georgia, where he’s been indicted along with more than a dozen other co-defendants on racketeering charges tied to his campaign’s efforts to overturn the 2020 election. The presumptive Republican nominee was in Georgia for a fundraiser in Atlanta’s Buckhead neighborhood but spoke to reporters briefly about the case, saying Fulton County District Attorney Fani Willis has been “totally discredited” because of her romantic involvement with one of the special prosecutors on her team. “I suspect that case is going to be terminated, because it has absolutely no credibility,” Trump said.
• On Wednesday, Judge Tanya Chutkan dismissed the idea that defendants who are on trial for charges related to the breach of the Capitol on January 6, 2021, are “hostages” because they are being kept in jail. During a sentencing hearing for Antony Vo, who was convicted last fall for unlawfully entering the Capitol with his mother, Chutkan said the defendants are “dangerous people” who need to be jailed while awaiting their trials or sentencing. Chutkan is also presiding over Trump’s federal election interference case, and the former president has frequently referred to those who have been in jail in the nation’s capital as “political prisoners” and “hostages” and drawn comparisons to his criminal prosecutions.

No More Delays: Trump’s First Trial Set to Begin

At long last, we have nearly arrived. The pretrial motions are resolved. The gag order is in place and even expanded. The last-ditch efforts by the defendant to sue the judge and delay proceedings have failed. There’s no more putting it off, barring some unforeseen act of God: Donald Trump’s first criminal trial will begin this Monday, April 15, in a Manhattan courthouse.

This will be the first time ever a former sitting president will be tried on criminal charges by a jury of his peers. Widely perceived as the weakest of the four criminal cases facing him, even by Trump critics, Manhattan District Attorney Alvin Bragg’s case is focused on payments made to former pornographic film actress Stormy Daniels during the 2016 presidential campaign in order to stop Daniels from disclosing publicly the details of her sexual affair with Trump. Bragg has charged Trump with 34 counts of falsifying business records in the first degree as part of this hush-money scheme. If Trump is found guilty, the penalty could include jail time.

But don’t expect big fireworks just yet, because Monday’s proceedings will begin with the necessary work selecting who sits on that jury. To guide us through that process, Judge Juan Merchan has disclosed a letter to both the prosecution and the defense laying out the parameters of jury selection, including all of the 42 questions potential jurors will be asked as both legal teams evaluate the pool and try to agree on an impartial panel of 12.

Most of what Merchan outlines is standard criminal-trial jury selection stuff, but there are obviously some specific concerns given the high-profile and political nature of the case. Here are a couple of notable things from this letter:

• There are several questions on the questionnaire about whether a potential juror has or has someone close to them who has worked or volunteered for Trump or a company or political campaign associated with Trump or his close family. But the questions go beyond “work and volunteering” and even ask if potential jurors follow Trump on social media or have attended a Trump rally.
• There are also the requisite questions about working or volunteering for anti-Trump groups, attendance at anti-Trump rallies, and following anti-Trump accounts on social media.
• The questions get even more specific, including asking if a potential juror has ever belonged to any of a listed number of far-right or white nationalist groups, along with the left-wing antifa movement. Jurors will also be asked if they had read any books written by or listened to podcasts hosted by Michael Cohen, the former Trump attorney, or Mark Pomerantz, the former Bragg prosecutor who resigned from the investigation in 2022. There’s even a question about whether a potential juror has ever read any of Trump’s books.
• There’s an obvious set of questions not included on the questionnaire, which Merchan addresses directly in his letter along with a warning about the limited scope for voir dire: “Please note, there are no questions asking prospective jurors whom they voted for or intend to vote for, or whom they have made political contributions to. Nor are jurors asked about their specific political party registration, though the answer to that question may easily be gleaned from the responses to the other questions. Counsel is forewarned not to seek to expand the degree of intrusion beyond what is relevant and has already been approved.” In other words: Don’t ask anything about a jurors’ vote or political donations.
• Jurors will be informed that while their names will be disclosed to the two parties, they will not be publicly disclosed. Furthermore, the instructions will read, “Your addresses will not be shared with anyone other than counsel for the parties. We are doing this to preserve your privacy and to protect your identities from members of the public.”

The New York Times has a helpful piece outlining just what kind of jurors both sides will be looking for. In short, the prosecution wants the sort of educated, upper-middle-class New Yorker who might be disinclined to give the former president a break. The defense wants working class voters, particularly younger white and black men. The jury pool from deep-blue Manhattan will undoubtedly be stacked against Trump, but just because he’s unpopular there doesn’t mean he can’t get a fair hearing that results in his acquittal —though the Times reports that some on Team Trump aren’t aiming that high.

“Mr. Trump’s legal team sees the case as winnable, although some believe a full acquittal is less likely than the prospect of finding jurors willing to cause a mistrial by holding out against a unanimous guilty verdict, according to two people with direct knowledge of the discussions,” the paper reports.

Jack Smith’s Argument Against Presidential Immunity

Special counsel Jack Smith is having a special month. While Trump goes to trial in New York state court, you can bet Smith’s team is watching the jury selection process closely—not just to see what potential jurors are saying (how many are trying to get on the jury so they can cash in after the trial with a tell-all book about how they were the holdout vote?) but how Donald Trump’s legal team is approaching the process and what types of jurors it wants on the jury. 

Smith’s team must also keep up with the classified documents case down in Florida in front of Judge Aileen Cannon, which is experiencing its own drama and delays. As Cannon works her way through the backlog of motions in that case, Smith’s team can expect one or more of her decisions to be appealable—by one side or the other. 

But none of that is what’s keeping Jack Smith up at night. On April 16, the Supreme Court will hear arguments in Fischer v. United States. In that case, several January 6 defendants were charged with violating 18 U.S.C. § 1512, which says:

Whoever corruptly-

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

This crime was added by Congress to target corporate fraud and abuse “involving evidence spoliation that obstructs congressional inquiries and investigations.” And that’s clearly what Part 1 is focused on. But check out Part 2. Does “otherwise” broaden the scope of the crime? Or does “otherwise” mean other things that are similar in kind to what Part 1 is describing, which would involve evidence or records … and which the January 6 defendants in question had nothing to do with? 

Donald Trump was also charged under this statute—twice—in Jack Smith’s D.C. election-interference case against Trump. If the Supreme Court holds that the law applies only to destroying evidence, that could knock out two of his four charges against Trump. In his latest filing at the court, Smith argued that any ruling in that case shouldn’t affect his prosecution because Trump’s “efforts to use fraudulent electoral certifications rather than genuine ones at the Joint Session” should fit squarely into any reading of the statute. We’ll see. 

But that’s not all, folks! On April 25, the Supreme Court is hearing Trump v. United States about “whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” Or for our non-lawyers, Smith has to convince the Supreme Court that he can continue his criminal prosecution against Donald Trump for his election interference stuff … at all! 

Smith filed his brief to the court this week. He dedicates most of his argument to why a former president lacks immunity from federal criminal prosecution for all official acts during his presidency. No real surprise there, except that the Department of Justice advocates on behalf of the executive branch—aka the president. That usually entails, as you might imagine, maximizing the power of the presidency. In war, in appointments, and in, well, not going to prison. (See the 1973 Nixon-era DOJ memo conveniently deciding that presidents can’t be indicted while in office that was echoed by the Clinton administration in October 2000.) 

But toward the end of Smith’s brief is where things get interesting. 

“Even assuming that a former President is entitled to some immunity for official acts,” Smith writes, “that immunity should not be held to bar this prosecution.” Why? Smith argues that a president’s efforts to “overturn an election and thwart the peaceful transfer of power to his lawfully elected successor is the paradigmatic example of conduct that should not be immunized, even if other conduct should be.” And—or maybe “or”—he argues that the conduct that Trump was indicted for shouldn’t be considered an official act because “the core of the charged conspiracies is a private scheme with private actors to achieve a private end: petitioner’s effort to remain in power by fraud.” 

Sarah’s View

If the Supreme Court was going to agree with the bulk of Smith’s brief—that a president is not immune from criminal prosecution for any and all official acts while in office—then they didn’t need to take this case. That is what the D.C. Circuit held in February, and this whole thing could have moved on without input from the nine justices. 

So it is surprising that Smith dedicated so little of his time (and remember, each side’s brief has to meet a strict page limit) to the argument that the justices are most likely to focus on: Which official acts are immune, and does Trump’s charged conduct look more like immune conduct or indictable conduct? 

Fewer than five pages are dedicated to the arguments in case he doesn’t win a complete victory and less than one page addresses whether he should still be able to use unindictable acts as evidence even if he can’t use those acts to support the elements of the underlying charges themselves. 

The Supreme Court has long held that presidents are immune from civil liability for any official acts while in office. It would be surprising if the exact opposite is true when it comes to criminal liability. Instead, what is more likely is that the court holds exactly what Smith gives short shrift to: that the public interest in prosecuting criminal conduct overcomes the executive branches immunity interests, but that some or even most official acts by a president are immune from prosecution. And the question will be whether all or only some of Trump’s indicted acts fall into that bucket.