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.
David French: Before we start, just a quick refresher on the case. Donald Trump is charged with falsifying business records to conceal hush money payments made to Stormy Daniels, a porn film actress, to cover up a sexual relationship that Daniels said she had with Trump in 2006.
Alvin Bragg, the Manhattan district attorney, claims that Trump falsely recorded reimbursements for the hush money payments as “legal expenses.” Falsifying business records is ordinarily only a misdemeanor, but the D.A. is claiming that Trump falsified records with the intent to commit other crimes or conceal other crimes, including state and federal campaign finance violations, state tax crimes and the falsification of other business records. If he falsified business records to aid in the commission of these other crimes, then Trump could be guilty of a felony.
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.
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.
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: Jury selection — “voir dire” in legal parlance — is intended to ensure that the jurors can be fair and impartial as they assess the evidence presented and apply the law to the facts as the judge instructs them. But realistically, 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.
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.
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.
White: They’re both concerned about bias, but the government’s job is harder, since they need to convince all 12 jurors. TV and expensive consultants have encouraged us to think this is a scientific process that can be quantified. I think it remains a very subjective exercise.
French: You’ve both talked about intent as a key element in this case. As prosecutors, how do you go about proving intent in the face of either a defendant’s denial or the defendant’s silence?
White: Well, silence certainly isn’t the issue here. The best way to prove intent is with the defendant’s own words. And Trump runs his mouth a lot. As a prosecutor, you lay out the things the defendant did, and what they said about it, and ask the jury to draw inferences from that — why would he have done those things and said those things if he didn’t have this intent.
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.
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.
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, and it’s even more unlikely. The ridiculous truth is that to spend jail time in New York you’ve got to be a teenager accused of swiping a backpack or something.
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.
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?
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.
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 a few lightning-round questions. First, 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.
McCord: I’m also most interested in hearing from Trump.
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.
French: Finally, what’s the best method for waking up a sleeping client?
McCord: My client for most of my career was the United States, and the United States doesn’t fall asleep at the table.
White: Whisper how much you’re charging per hour.
David French is a Times columnist. Mary McCord, the executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, was the acting assistant attorney general for national security from 2016 to 2017, principal deputy assistant attorney general from 2014 to 2016 and a federal prosecutor for 20 years. Ken White, a former federal prosecutor, is a partner at Brown White & Osborn in Los Angeles.
Source photographs by Adam Gray and Angela Weiss, via Getty Images.
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