A trip inside the courthouse for Donald Trump’s trial

Jordan: We’ve gotten pretty used to the word unprecedented over the past handful of years. Pandemics forest fires, ocean temperatures, and American presidents.

News clip 1: This is the first criminal trial of a former president in US History

Jordan: Two weeks ago, former American president Donald J. Trump. And saying that phrase still feels strange after all these years, walked into a Manhattan courtroom for the beginning of his trial on charges of falsifying business records to conceal a payment to a porn star. I know of all of the things. This is the first one that actually got him into a courtroom. But it did. And here he sits either freezing or sleeping or both.

Donald Trump: And I’m sitting here for days now from morning till night in that freezing room freezing. Everybody was freezing in there.

News clip 2: Trump appears to be sleeping. His head keeps dropping down and his mouth goes slack.

Jordan: Meanwhile, polls show that Trump freezing sleeping, criminally charged. Trump is neck and neck with Joe Biden for the American presidency, which he has publicly vowed to use to both pardon himself an exact revenge on basically anyone whom he feels has wronged him. It is frankly an insane situation and one that deserves a bird’s eye view of the full context rather than the daily headlines full of minute courtroom details. So how did America find itself here? What difference will this trial actually make? Could former US president Donald J. Trump really end up in jail? I’m Jordan Heath-Rawlings. This is The Big Story. Andrew Rice is a features writer for New York Magazine. He’s been covering the trial. Hello, Andrew.

Andrew Rice: Hi, how are you?

Jordan: I’m doing very well. Thanks for joining the show.

Andrew Rice: I’m glad to be here.

Jordan: Off the top in the introduction I said that we’ve been using the word unprecedented a lot over the past several years. This is another one of those times. Can you start by giving us a sense of history here? How does the spectacle of former president Trump in a Manhattan courtroom fit into the context of the American presidency?

Andrew Rice: Well, it’s sort of wildly in Congress, which is to that it is of course a historically unprecedented trial, the first criminal trial of a former president of the United States that’s of course occurring in the midst of a campaign that could return him to office. On the other hand, the actual physical setting of the trial is just a completely work a day, not at all ornate criminal courthouse in which simultaneous with this many other criminal trials for robbery or burglary or murder or public urination are going on in the courthouse, if not trials and arraignments. All the sort of sausage making of the criminal justice system is simultaneously happening here. So the one hand on the 15th floor where the trial is taking place, you have this huge kind of gaggle of reporters and secret service and the campaign manager for Donald Trump’s campaign was present. All these people who are kind of well-known figures in the United States. Meanwhile, on the 14th or 13th floor, you’ve got people who have been bust over from Rikers Island Jail, which is the big jail in New York who are having their trial dates. And the thing I always find remarkable is that it’s the first place in many, many years I’ve been in where a bathroom smelled like smoke. And so this is just this very shabby place for this very important and historically unprecedented proceeding

Jordan: For our Canadian audience who probably try not to dwell over much on US politics. All of the cases against Donald Trump and all of the charges he faces in various places can be a little confusing. Maybe just before we get into it, can you just quickly explain which trial this is and exactly what Donald Trump is alleged to have done that’s on display here?

Andrew Rice: Well, I should note that actually it’s confusing to Americans too, and I’ve been following it rather closely. And when I tell people that I’m covering this trial, oftentimes the reaction is like, what’s this one about exactly again, and this one is actually of the four criminal trials that Donald Trump faces currently. This is by far the one that is sort of the outlier in terms of its seeming level of seriousness and the underlying the seriousness of the underlying offense. Basically, he’s been charged here with paying money to women who claim to have had sexual relationships with him prior to 2016. So these arrangements were worked out during the 2016 campaign. I should note here that he has denied having relationships with these women, but nonetheless, he or his representatives paid them money not to tell their stories before the 2016 campaign. There’s nothing illegal about that actually. And you can pay money to people for not telling your secrets. That’s perfectly legal. You can pay extortion money. It’s not illegal to pay off someone who’s extorting you. But the district attorney in New York has charged him with 34 felony counts of falsifying business records. And those counts arise from the way that he went about financing these deals, which is that they were paid by his personal attorney, Michael Cohen, and then subsequently allegedly disguised by turning them into basically legal fees that Donald Trump paid him. So the legal fees were actually the reimbursement for the hush money payment according to prosecutors. And this violated a law in New York against falsifying business records. And so that’s what he’s being charged with.

Jordan: That sounds so penny-ante compared to the other cases against him. And it also, I mean when Trump complains that this is a witch hunt and this is people going after him politically, I’m not saying that I see his point, but I see why he’s making that case, I guess, to his voters because it really does seem like they’ve kind of caught him on a technicality here.

Andrew Rice: Yeah, I mean the comparison that you often hear is the mobster Al Capone was prosecuted for tax evasion and not for murdering people. That said, I mean, I think there are people who are not supporters of Donald Trump, who validly I think have raised questions about selective prosecution in this case have raised questions about whether the law that he’s being charged under would be the sort of thing that any other person who wasn’t named Donald Trump would be charged with a crime In this situation. The law against falsifying business records typically is kind of a supplementary charge that is charged in connection with some other bigger crime money laundering or bank fraud or something like that. In this case, the underlying crime is a little unclear and they’re just charging the falsification of business records has a sort of standalone offense. And if that sounds like sort of arcane and technical, it is arcane and technical. And that’s the point of the criticism is that many people, not just Trump supporters, are of the opinion that this is a crime that has been concocted in order to charge him with bad behavior.

Jordan: You don’t need to recount every single thing and witness that’s been presented in court, but maybe the trial’s been going on for two weeks. First there was jury selection and now the prosecution is making its case. Can you sort of broadly explain to us the narrative that they’re presenting to the jury?

Andrew Rice: Primarily, there have been two witnesses, and those two witnesses have both testified about these hush money deals that were done in 2016. There were really three of them, two major ones. One with a woman named Kara McDougal who was a former Playboy playmate who alleged that she had a year long affair with Donald Trump in 2006 and the second one with a woman named Stormy Daniels, who was an adult film star, a porn actress who claimed that she also had a sexual encounter with Trump sort of in and around the same time. And basically the two people who have testified are not the women. The two people who have testified are men who were involved in kind of brokering these deals on behalf of the women or on behalf of Trump. The first one being David Pecker, who’s the former chief executive of the National Enquirer, who testified that the National Enquirer, which is a tabloid here in the United States, supermarket tabloid, he said that basically testified that the National Enquirer acted as almost a sort of arm of the Trump campaign during 2016, amplifying Trump’s sort of message and attacking his opponents. And the third part of it, according to Pecker, this sort of informal or maybe formal understanding involved buying and hushing up stories from women of this sort. The second person who testified was an individual, he just started testifying yesterday. He hasn’t completed his testimony, but his name is Keith Davidson, and he was a lawyer who represented both Stormy Daniels and Kara McDougal. And his testimony yesterday was really quite riveting because it was a very unusual kind of window into how these kind of sleazy arrangements are brokered where we’re basically men, I think they’re typically men are kind of creating a market for secrets about the sexual indiscretions of others and essentially using that as a way to profit from the indiscretions of people like Donald Trump.

Jordan: In the midst of all that, there have been several times I guess that the actual presenting of that case has been kind of interrupted or delayed by separate charges of contempt. Can you explain what’s happening there and if this could possibly actually end in Trump facing jail?

Andrew Rice: Well, this has largely happened outside of the presence of this jury in the American legal system. Typically there’s the trial that happens when the jury is present, and then there are all kinds of motions and arguments that happen outside of the jury’s presence. So I think it’s important to say that this hasn’t really infected, so to speak. The case is being presented to the jury, but basically the district attorney’s office has presented evidence on several occasions of Trump posting on his platform, through social or even commenting outside the courtroom, attacking witnesses, attacking the judge in the case, attacking the district attorney in the case, otherwise just doing what Donald Trump does, which is attack, attack, attack anyone who accuses him. But in this context where he’s accused of a crime, the judge has put a gag order on him that he is sort of defying in various different ways. And so each time he does that, the prosecutors come in, they say he’s been violating the gag order yesterday, the judge found him in contempt for violating that gag order and fined him $9,000, which of course to Donald Trump is not an enormous amount of money. It’s the most money that for nine separate offenses that the loss is basically you can only find somebody a thousand dollars per offense. But what you can do for repeated violations is put someone in jail for up to 30 days. So the judge said quite clearly in his decision that continued violations of this order could result in jail time. I think it’s somewhat hard to imagine how that would play out. I think for one thing, Donald Trump has secret service agents around him as a presidential candidate, and as a former president, he’s entitled to secret service protection for life. So those agents are supposed to protect him. They work for him and not the judge, so to speak. So the question of what would happen if the judge were to order him jailed is something of an unanswered one. I think that my sense of it is that this judge, Judge Juan Mershan, is trying very, very hard to avoid that level of escalation. And in fairness to Trump, while he has attacked the system, while he has attacked the judge, he does seem to have tailored what he has to say to push as far as he can within the bounds of the court order, which is to say he generally has been, if not complying with this, he hasn’t been doing, hasn’t yet done anything so outrageous by his standards that you could foresee a judge sending him to jail at least during the course of this trial. But of course, he’s shown in previous trials and in previous proceedings that he’s more than happy to increase the pressure and increase the volume. So if things go poorly for him at this trial, I think we will start to see potentially things him saying and doing things potentially that could result in a confrontation with the judge and how that confrontation would end up playing out is hard to predict.

Jordan: Because we’re talking about his behavior. How has he been taking this whole thing? I know there have been reports of him sleeping in court and complaining about conditions there. What’s he been up to?

Andrew Rice: I’ve now seen him in several different courtrooms over the course of this year, both in his criminal cases and there have been several civil trials in which he has been held liable for enormous monetary damages for various things. I would say that he is being much more sedate. I use that word, advisedly in this context than he was in the civil cases, the civil cases. He was quite vociferous at times. He kind of made a scene in a couple of these cases. And in the criminal case, he has been, with the exception of one incident that happened during the jury selection, he hasn’t done some of the things that he’s done before, kind of audibly saying in the presence of the jury things like this is a witch hunch or what have you. So that hasn’t happened. He has gotten some criticism because he does seem to rest his eyes some, I can’t say whether he’s conscious or not. I think that’s only for him to be able to say. But I think that my take on it, my completely uninformed, but just from watching him take on it, is that I think he’s trying to disassociate himself a bit from what’s happening in the courtroom. And one way that he may be doing that is by literally closing his eyes to what’s going on and trying to tune it out because I don’t think that he’s a sleepy person or somebody who lacks energy when it’s called for. I think he’s fighting his natural inclination to fight back to say something, to reject the proceedings.

Jordan: What is the plan for Trump and his lawyers here in their side of the case? And you wrote a piece a little bit ago that said, with regards to the jury, he only needs one. What does that mean?

Andrew Rice: In our legal system, there’s 12 jurors and they have to reach a unanimous verdict beyond a reasonable doubt in order to convict him. And so it’s a kind of practice trial strategy for especially defendants in high profile cases like this. An acquittal, seems unlikely, and I think everyone agrees that an acquittal is unlikely just because of the, I mean, as I say, the cover story there of New York Magazine, people danced in the streets in New York when Trump was defeated for reelection. So your chances of getting 12 people to hold him harmless in this case is very unlikely, but what isn’t? I think a realistic scenario is that they managed to convince one or two people that, well, they may not like Trump, but this case in particular is politically motivated. It doesn’t seem to be the sort of thing that we should be sending people potentially to jail or to prison over. And so therefore you’re going for a holdout or two to basically say, there’s no way I’m going to vote to convict. And then the judge will be forced to declare a mistrial. And there’s no doubt what would happen if a mistrial were declared. Donald Trump would go outside the courthouse and say, I’ve been completely exonerated even in New York. And he would continue to run for president, and effectively it would be impossible to put him on a trial again before the election, and I think that might very well have a consequential effect on the result of the election.

Jordan: Could Trump end up in this trial taking the stand in his own defence?

Andrew Rice: Well, he said that he wants to take the stand in his own defence in the two civil trials that he faced over the course of the last year, he took the stand in both of those cases. The first one was a civil fraud trial brought by the New York Attorney General. He testified quite at length. He was very combative both with the plaintiffs and with the judge. In the second case, which involved a defamation claim. It’s a little complicated to get into what it’s about, but anyway, he insisted he wanted to tell a story, got on the stand, but the judge in that case made it very clear that he could only testify to a very narrow set of things. He did not let him give political speeches. Trump was very frustrated by that. In this case, he said he wants to testify and he wants to take the stand in his own defence. I think everyone including-

Jordan: Do you think his lawyers want that?

Andrew Rice: Well, I was about to say, I think everyone, including his lawyers, think that could potentially be a huge disaster for him. He’s sort of like his own worst advocate oftentimes, and I think that more recently he’s backed off a little bit on his categorical statements that he was going to take the stand. He said his fallback might be, well, this judge is out to get me. The prosecutors are out to get me. They won’t let me tell my truth, and therefore I’m not going to take the stand. But I mean, this is Donald Trump, and he seems to be bent on doing the thing that’s most dramatic and most attention getting in any scenario. So this is his criminal trial. Would he really be willing to pass up the opportunity to have his kind of climactic showdown with the prosecutors in the case in the stand? I don’t know. I think he thinks of himself as his own best advocate, even though he isn’t, and so therefore, I could very well see him going against the advice of attorneys and lots of other people and going ahead and giving a shot.

Jordan: You mentioned that he’s unlikely to be acquitted. You talked about what happens if there’s a mistrial. What if he is found guilty? Is that penalty assured to come with jail time? The judge then, I guess, has a decision to make. What happens then?

Andrew Rice: I mean, I think that, again, this is a situation where if it was any other defendant but Donald Trump, there would be no doubt that this case would result in a fine or probation or some quite mild sentence. This judge, judge Merchan has a reputation as being a particularly harsh sentencer to white collar defendants. Notably, he sentenced the chief financial officer of the Trump organization, a man named Alan Weisselberg to two jail terms, actually the first one after he pleaded guilty, and the second one after he pleaded guilty, a second time to committing perjury. In another case, in the civil fraud trial that I mentioned before, he sent this a nearly 80-year-old man to Rikers Islands, a very, very harsh jail for months at a time. So the question becomes, would you do the same to Trump? And I don’t think anyone knows for sure. I think one thing that we do know with some certitude is that it’s unlikely if it were to happen, it would be unlikely that any sentence would be served until after the election, which is to say Trump would immediately appeal any sentence, and that appeal would go on for some time before he would serve his sentence, and the election would be held in the interim. If he is elected, then there’s quite a strong legal precedent for the proposition that the president can’t be thrown in jail. So he would kind of get a stay, I suppose, on that sentence during the time that he is president, which would of course give him a lot of time to appeal to case itself. He’s indicated that he’s going to appeal all the way to the US Supreme Court, and we’ve seen that the US Supreme Court, even in cases where the charges are quite serious, like the January 6th case in Washington, Supreme Court seems to be eager to find ways to spare him from punishment. So I think the chances that Donald Trump will serve time in jail if he wins the election is minimal. If he doesn’t win the election, then I think there’s a really good chance that he’ll go not just to jail, but to federal prison, not because of this particular offense, but because of the much more serious crimes he’s charged with, with the Washington DC and in Florida. Those cases are much stronger. Those cases involve crimes that carry heavy penalties. So for Trump, really the verdict that he needs to win is the one in November.

Jordan: Andrew, thank you so much for this. It’s fascinating. What a time to be alive.

Andrew Rice: I agree. It’s certainly interesting, interesting times.

Jordan: Thanks again.

Andrew Rice: Okay, thanks a lot.

Jordan: Andrew Rice, covering the Trump trial along with others for New York Magazine. Now is The Big Story for more from us, but not too much more on Donald Trump because we try to avoid it until we have a situation like this one. You can head to TheBigStory podcast.ca. You can, of course, always leave us feedback by emailing us at hello@TheBigStorypodcast.ca or by calling us and leaving a voicemail that number 416-935-5935. You can get The Big Story absolutely anywhere you get your podcasts, including now YouTube Music. If that’s how you’d prefer to listen, you can find us there. Thanks for listening. I’m Jordan Heath-Rawlings. We’ll talk tomorrow.