‘It’s a Very Winnable Case’: Three Writers Dissect the Trump Trial
David French, a Times columnist, hosted a written online conversation with the former federal prosecutors Mary McCord and Ken White to discuss and debate the Trump criminal trial in Manhattan and how, or if, the outcome will matter to voters.
…[French]: When the case was filed, legal analysts from across the political spectrum voiced concern about the case, mainly on legal grounds. I have expressed my own doubts about the case. Now that the trial is underway, what’s your assessment of the case today?
Ken White: We know a lot more now about the D.A.’s theory of the case than we did before. There was a lot of speculation about whether the predicate crime — the one Trump was promoting by falsifying records — was going to be federal or state, and whether it was going to be campaign-finance related or election-interference related. Now the prosecutors have shown their hand, and their lead theory is going to be that Trump meant to interfere unlawfully with an election by concealing information that the voters might have considered. A case tends to look stronger after the prosecution picks a theory and commits to it. The evidence of deliberate falsification of records is going to be very strong.
Mary McCord: I agree, the falsification of business records seems rock-solid based on the documentary evidence.
The question for the jurors will be Trump’s knowledge and intent. I expect some of the evidence of Trump’s knowledge and intent will come from witnesses with varying degrees of credibility, but other evidence will come from emails and text messages, including those that will corroborate witnesses with credibility issues, like Michael Cohen, Trump’s former lawyer and “fixer.” The picture that the prosecutors will paint for the jury, based on the judge’s pretrial rulings, will give the jurors plenty of evidence of motive: to prevent information damaging to candidate Trump from becoming public just weeks before the 2016 election. It’s a very winnable case for the D.A.
French: Let’s stick with the legal analysis for a moment. The D.A. has to prove that Trump falsified business records in furtherance of committing (or concealing) another crime. But Trump hasn’t been charged with that other crime. Why hasn’t the D.A. charged additional crimes, and how could that affect the case?
McCord: Because, based on New York law, the D.A. was not required to seek indictment on the crimes that Trump is alleged to have intended to conceal by falsifying business records.
White: It’s not unusual to charge cases relying on an uncharged predicate crime. It’s usually a smart decision by the D.A. to make the charges narrower and simpler.
McCord: The jury will be instructed by Justice Juan Merchan about what they have to conclude about Trump’s intent and whether the government’s evidence has proved that intent beyond a reasonable doubt.
[Here, I would make the argument were I the defense that the intent was to conceal the Stormy Daniels affair from Melanoma. The Access Hollywood tape was already out there and it indeed shook the Trump campaign. But they weathered it. What was one more? The affair with Stormy though, occurred, as I recall, when Melanoma was pregnant with Barron! That's a bigger family problem, maybe a bigger family problem than a political problem. For Trumpie's intent, certainly not causing the breakup of his family was a motive in getting the story killed. I would argue that if I were the defense.]
White: At the risk of getting all legal realist on you, jurors usually absorb case theories holistically — they decide if they accept the big picture and don’t get too bogged down with the details.
[I have found that to be true with regard to the charges and the why. And this theory is easy to understand: Trump killed the story with intent to interfere with the 2016 election. The problem is proving beyond and to the exclusion of a reasonable doubt that Trumpie's intent was election interference.]
French: Thanks for bringing up the jury. You’ve both picked many juries in your career. Can you help readers understand what kind of juror each side is looking for (or worried about)?
McCord: ...the defense will be looking for jurors who they think will be skeptical of the government’s case and maybe who are skeptical of the government generally.
[The defense didn’t get that with the first seven. They got two lawyers for crissakes.]
White: The defense wants someone who is independent and freethinking and willing to be the one holdout who hangs the jury — and, ideally, a secret Trump partisan.
[It doesn’t appear to me that they got a rogue and I am certain they didn’t get a MAGAt.]
McCord: Right, and so the government will be trying to weed out any potential juror they think could hang the jury. It likely will prefer well-read jurors, so long as those jurors are reading and listening to fact-based news. This is why one of the questions during jury selection asks potential jurors what media they visit, read or watch.
[The government got one nincompoop, the Black lady who wasn’t aware Trumpie had other cases, and who liked that he "speaks his mind."]
White: They’re both concerned about bias, but the government’s job is harder, since they need to convince all 12 jurors. ...
…
McCord: The government will be relying on witness testimony from those who spoke personally with Trump, like Michael Cohen and the former American Media chief David Pecker, but also on any corroborating evidence that doesn’t depend on credibility, like emails, text messages and other contemporaneous documentation.
White: It’s something lawyers view in a more complicated way than jurors do. Jurors tend to take things in a big-picture way. For years, legal pundits have been arguing that it’s hard to prove Trump’s intent because he’s so erratic and says so many contradictory things, so how can you draw inferences? But I don’t think a jury processes it that way.
[I dissent somewhat from this. The big picture theory, I agree, juror's will grasp. But there are two theories here (or should be), the election interference theory, and the family breakup theory. A theory, whether in physics or in law, has to be proven with evidence. The government's evidence has to prove their theory beyond and to the exclusion of the defense theory. The defense doesn't have to prove their theory, they just have to raise reasonable doubt on the government's theory. A reasonable doubt defense was, in my experience as a prosecutor, the most vexing defense. Look, if this case was all "big picture" simple, why did Alvin Bragg's juror profile include "well-read", and "some college?" Bragg has got two lawyers on this jury. They are going to parse theory and proof just as this lawyer has. One of my legal mentors, now a judge, had the view that a trial should be merely a tedious formality between opening statement and verdict. The "big picture" view of jury decision-making, which I largely hold to, includes, it must include, both an initial reaction to the theory and to the government's proof: "If they prove that, he's guilty." I don't know if Bragg will get that dual gut reaction after openings.]
McCord: This is also why it is important for the government to tell the whole story of the conspiracy to “catch and kill” allegations that would reflect poorly on Trump with voters and to elevate stories that would reflect poorly on his opponents. That broader scheme, dating back to 2015, suggests Trump’s intent not only to pay off Stormy Daniels to keep her quiet, but to conceal those payments through false business records. And the timing of the hush money payments just after the “Access Hollywood” story broke in October 2016 also provides clues about his intent given how close the election was.
[Mary McCord there brings in another very important step: concealment of the hush money payments as business records. So there are two steps: 1) pay hush money to conceal an affair (from Melanoma, in the defense theory) 2) cover up those payments as business records. Why would that be necessary if Trumpie's intent was concealment from his wife? Did Melanoma go over his checkbook to see if he was making any payments to Solid Gold? That's not reasonable. That doesn't raise reasonable doubt on the government's theory. Why did he only move to kill it in 2015 and not in 2006 when the affair occurred? I agree with McCord that the timing of the kill is a piece of evidence that does tend to prove the government's theory of intent to interfere with the 2016 election.]
French: How serious is this case for Trump, as a matter of legal jeopardy, especially given that he’d be a first-time nonviolent offender?
White: New York criminal practitioners seem fairly unanimous that a first-time offender convicted of something like this is extremely unlikely to do jail time. Add in his age and health, [What does he know that he is not telling about Trumpie's health?] and it’s even more unlikely....
McCord: I don’t think potential jail time is what is most important about this case. Being found guilty by a jury of a crime that was intended to influence a presidential election would be a huge deal, or at least it should be, especially if the person found guilty is running for president again.
French: Mary, I’m glad you said a conviction should be a huge deal. I absolutely agree. But would it be, truly? One side of me says that a felony conviction — especially following lurid evidence of the affair and coverup — could break through with at least some Americans. But then I remind myself that he has maintained his extraordinarily high floor of support through impeachments, indictments, a sexual abuse liability verdict and a pair of financially devastating civil judgments. Do you think a criminal trial has a unique chance to drive public opinion?
White: I’m afraid I’m a pessimist here. I think Trump has conditioned his base, perhaps 30 percent to 35 percent of the country, to see any conviction as unjust and illegitimate. The big question — on which the viability of the rule of law may hang — is what the people in the middle think. Will they care?
McCord: This is why the framing of the case is so important. Trump is not on trial for having an affair with a porn star. He is on trial for falsifying business records to give him an advantage in the election for president — and it was a close election. Today, Trump has used his claims of political persecution to solidify his base. But for those who don’t buy the persecution argument, conviction here might be enough to give them pause in November.
[I agree whole-heartedly with McCord in the importance of defining the case in that way. And my judgment is that any criminal conviction, even on a misdemeanor, would give some voters "pause."]
French: Let me ask a big-picture question. The rule of law is necessary for preserving our democracy, but I worry that it’s not sufficient. If enough people want Trump, can even a criminal conviction keep him at bay? Will the people get the Republic they want, law be damned?
[I agree with everything David French said there, but Trumpie is not going to win. Regardless of the outcome of this case, Trumpie will lose.]
White: The rule of law is not a deus ex machina that will save us from ignorance, prejudice and laziness. It’s not designed to, and is certainly inadequate to, fix our terrible politics. For that matter our political system might not be equipped to reject a populist like Trump. John Adams wrote: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” He was probably talking about shared communal values rather than religious dogma. Without a shared set of values about what we expect from a leader, our system is probably not capable of defeating a tyrant.
[I agree with everything Ken White said there and I think we are sufficiently communal, or insufficiently non-communal that Trumpie will be trumped.]
McCord: Trump has exposed the weaknesses of a system that is based at least in part on the expectation that most people — both the governed and the governing — will seek to abide by the rule of law. But when someone like Trump comes along, we see that our system is slow and inefficient.
French: Rather than ending on a rather bleak note about American democracy, let’s conclude with…which witness — aside from Michael Cohen — are you most interested in hearing from?
White: Trump himself. No sane defense attorney would want to put him on the stand. But will this be the case where he overrules his attorneys? It’s a ploy that’s very unlikely to get him a not-guilty verdict, but might be effective in reaching that lone holdout.
[I think Trumpie will hang himself if he testifies. There will be no holdout if he testifies.]
…
French: This is pure speculation, but if the Stormy Daniels scandal emerged in October 2016, would Trump have won?
White: Yes. I think that sort of thing was already priced in. Nobody voted for him as a family man.
McCord: Coming on the heels of the “Access Hollywood” tape, this may have affected enough voters, particularly women voters, to make a difference.
[Both of those answers are eminently reasonable and I think both help the government's theory and its proof. A reasonable Trumpie would have concluded that whatever the effect on his marriage, having the Stormy Daniels affair exposed right before the 2016 election would have been politically damaging, whether it made a difference or not. What sticks in my craw is the question, "Did the government prove beyond and to the exclusion of every reasonable doubt that Trumpie's intent was election interference?" My judgment is that Alvin Bragg will not convict Trumpie of the felonies but, if instructed on lessers, will convict him of the misdemeanors and that neither conviction on the one or the other nor outright acquittal will matter: President Biden will defeat Trump.]
