It took a week in downtown New York to pick a jury, and the first phase of the Trump trial is over, with opening statements today.
Judge Thomas Murphy, who made his reputation with the iconic prosecution of Alger Hiss, began his very model of an opening statement in that case with the words: “Ladies and gentlemen of the jury, you are welcome to a court of justice. Justice to the defendant, to be sure, and justice to my client, the United States of America.” Trump does not appear to understand that he is in a court of justice. The 45th president thinks that he is free to doze off unless he is on national television, the very somnolent state he pins on his political adversary, Joe Biden.
Trump has shown contempt for the judge and the proceeding. Unlike most criminal defendants, he refuses to rise when the jury enters, repeatedly falls asleep, and holds televised pressers attacking the judge and the case. Contempt for the tribunal is always misplaced in the courtroom.
In my experience, criminal defendants bring their families to trial to elicit the jury’s sympathy. Trump has a wife and five children. No family member is present.
Like a bullfight, a criminal trial unfolds in stages. In the Plaza del Toros, a traditional bullfight typically consists of three main stages:
The bull enters the ring and is met by picadors on horseback who lance the bull’s neck muscles to weaken it and lower its head for the matador later in the fight.
The banderillas, the matador’s helpers, are on foot, placing sharp barbed sticks decorated with colorful ribbons into the bull’s shoulders to weaken and enrage the bull even more.
In the final stage, the matador uses a small red cape called a muleta and a sword to demonstrate his skill and control over the bull. The matador aims to execute the final kill with a sword thrust between the bull’s shoulder.
In a criminal trial, the proceeding similarly unfolds in stages:
Opening statements are where the lawyers address the jury and tell them what they intend to prove. The prosecutor goes first because he has the burden of proof. In the case of defense counsel, the lawyer may tell the jury what the prosecutor will fail to prove.
The proof is where the two sides present evidence that will prove or disprove the charges in the indictment. In our system, the prosecutor goes first; the defense gets to cross-examine the witnesses. Then, the defendant presents his evidence, although he does not have to prove a blessed thing. The burden of proof is on the prosecutor. The defendant is never required to take the stand; if he does not, the jury may not draw any adverse inference.
Closing arguments where the lawyers summarize the evidence. The prosecutor’s job is to build the case, and the defense lawyer’s job is to deconstruct the case.
The charge is where the judge instructs the jury on the applicable law.
The verdict is analogous to the moment of truth in the bullfight, where the 12 jury members, after deliberating, declare guilty or not guilty. The verdict must be unanimous.
In the 34 felony counts of the indictment, Trump is charged with falsifying business records to conceal his sexual fling with the porn star Stormy Daniels in the run-up to the 2016 election. The Manhattan District Attorney Alvin Bragg alleges that in falsifying the records, Trump had the “intent to commit another crime, namely violations of federal and state election laws, as well as state tax laws.”
Trump supporters see the case as a peccadillo, the smallest potato in the patch of alleged Trump transgressions. Others see the conduct more darkly as the “gateway” to January 6, when Trump engages in fraud to retain power. The Billy Bush “Grab Them by the P***y” tape had just been released in 2016, and Trump could not afford another sex scandal. He had claimed that he could grab women by the genitals because “when you’re a star, they let you do it.” He had to bury stories of additional sexual misbehavior. Polls predicted a close election.
Witness lists not yet released are expected to include not only Stormy Daniels but David Pecker, the former publisher of the National Enquirer, alleged to have been involved with Trump in a “catch and kill” scheme to bury not only Stormy’s story but also that of Karen McDougal, a former Playboy “Playmate of the Year.” McDougal had told friends of a year-long affair with Trump and also received money and blandishments from the Enquirer.
Trump might have been tried first in the federal courts in the January 6 case where he conspired to overturn an election and sabotage democracy, but that case is hung up in appeals he has taken to the Supreme Court. He might have been tried first for mishandling classified documents in the bowels of Mar-a-Lago. Still, that case is also delayed before Federal Judge Eileen Cannon, who apparently has never seen a delaying procedural move she doesn’t like.
So, we find the historic trial playing out in a state court in New York. Justice Louis Brandeis called the states “laboratories of democracy.” There is an irony in this. Trump was born in Manhattan. His father had owned multiple dwelling houses in Queens and Brooklyn. Still, the young Trump took his operations to Manhattan to make his fortune in hotels and buildings until he branched out to casinos in Atlantic City and eventually golf courses in Florida, where he now makes his home.
Eleven of the 34 charges against Trump involve false statements and business records.
Invoices were submitted by Trump’s long-standing personal attorney, Michael Cohen, to the Trump organization. The invoices were falsely labeled “legal fees” according to a “retainer agreement,” and the payments were designed to reimburse Cohen for a $130,000 payoff to porn star Stormy Daniels grossed up to pay the taxes Cohen had to spend on the purported legal fees. Trump personally signed nine of the 11 reimbursement checks to Cohen, which neatly ties the former president to the scheme.
Ties him in. neatly, that is, if Cohen is believed. Cohen is a convicted felon. In August 2018, he pleaded guilty to eight criminal charges in federal court, including tax evasion, making false statements to a financial institution, and campaign finance violations. Cohen was sentenced to three years in prison. His credibility as a witness will be at the heart of the Trump case. Judge Jesse M. Furman in Manhattan federal court questioned Cohen’s truthfulness under oath in a written order denying his request for early release from court supervision following his three-year sentence. Furman’s observation about Cohen’s sworn testimony in the New York civil case buttresses Trump’s claims that Cohen is untrustworthy. Judge Engoron, however, found Cohen to be credible.
Trump apparently does not dispute that he directed Cohen to make the payments but claims he never directed Cohen to break the law. “I never directed him to do anything wrong,” said Trump. “Whatever he did he did on his own. He’s a lawyer. A lawyer who represents a client is supposed to do the right thing. That’s why you pay them a lot of money.” Too bad for Trump’s defense. Criminal intent is gathered from acts, declarations, and conduct suggesting awareness of wrongdoing, not whether there was a conscious awareness of breaking a particular law.
Before Cohen decided to cooperate with prosecutors, Trump sang a different tune. He described Cohen as “a very fine person” “with a wonderful family” who would never “flip” on him.” When Cohen testifies, the lawyers will have a field day.
It is not unusual for a convicted criminal or a perjurer to be a witness for the prosecution in a criminal case. After all, who would be a witness to Trump’s crimes? The Archbishop of Canterbury? Trump’s corrupt lawyer on the inside would be able to tell the story of the fraud, and the question will be for the jury as to whether he will be believed.
In a bullfight, there is trumpet fanfare dramatically heralding the entrance of the matadors into the ring. In a criminal trial, there is drama but no fanfare. But, after all the delays, and all the motions, and all the tweets, the game is now afoot.
