The Tight Line Trump Has a Judge Walking

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Donald Trump is in his third week on trial in New York, where he faces 34 counts of falsifying business records in the first degree. He’s accused of covering up a $130,000 hush-money payment made in 2016 to the adult-film star Stormy Daniels, who recently testified about her encounters with the former president. I spoke with Atlantic staff writer David A. Graham about where the case stands, Trump’s penchant for violating his gag order, and the bizarre nature of this trial.

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Like an Ordinary Citizen

Stephanie Bai: To start off, let’s lay the groundwork for this trial. Can you briefly explain the case that the prosecutors are trying to make?

David A. Graham: People talk about this as “the hush-money case,” but paying hush money is not itself illegal. What prosecutors are arguing is that Trump paid Stormy Daniels in exchange for her not talking about their alleged sexual relationship, and then falsified the business records to cover up that payment. They say that this constituted election interference because the goal was to keep knowledge of the relationship from voters during the 2016 election.

The prosecution needs to establish that Trump was deeply involved in the creation and the payment of this hush-money agreement, because the defense is trying to say that Trump may not have been aware of the situation. When the prosecution questions people who worked in accounting at the Trump Organization, for example, they are trying to show that Trump was deeply involved in payments, deeply involved in the minutiae of the business—so he obviously would have been aware of a payout as big as $130,000.

Stephanie: What is Trump’s defense team’s counterargument?

David: They don’t deny that this money was paid, but they say that he didn’t falsify the records. They’re also trying to impugn the honesty of some of the witnesses. They mostly seem to be trying to pick apart aspects of the prosecution’s case rather than offering some sort of counternarrative.

Stephanie: If the prosecution isn’t able to successfully prove that Trump was aware of the hush-money agreement, what does that mean for their case?

David: If they can’t prove that Trump was involved, or if Trump’s lawyers can plausibly argue that he did this simply to protect his reputation or to protect his marriage rather than to interfere with the election, then the prosecutors will have a harder time getting the jury to convict.

Stephanie: In defending comments Trump made about the trial, his attorney Todd Blanche said that Trump had a right to complain about the “two systems of justice.” In some ways, it seems like the prosecution is arguing two cases: the hush-money case, and the case for this being a legitimate, fair trial—and not the “political witch hunt” that Trump has called it. Let’s say that Trump ends up getting convicted. Do you think his supporters will accept that outcome?

David: It depends on what that means. There was a poll yesterday saying that most people expect Trump to be convicted, and that includes a plurality of Republicans. So in that sense, they see what’s coming. But I think there’s a widespread sentiment that either he’s being prosecuted by Democrats who are out to get him or that what he did wasn’t wrong. If anything, the trial seems to be solidifying support within his base.

Stephanie: At the core of this case is the extramarital affair Trump allegedly had during his marriage to Melania. Have we heard anything from her during this trial?

David: We have not! Trump has brought a rotating posse with him to court, including not just his lawyers but also his aides, his campaign manager, and his son Eric. Melania has not been there. He complained that he had to be in court on her birthday, which is a little ironic given the alleged events that led to the case.

Stephanie: Headlines and pundits have called this a “historic” and “unprecedented” trial, because it’s the first time a former president has gone to trial for criminal charges. Has this case set any precedents for how a criminal trial of a former president would proceed?

David: This is not a legal precedent, but it’s been powerful to watch Trump have to show up in court when he clearly doesn’t want to be there, listen to testimony he doesn’t want to listen to, sit in this courtroom with a bad HVAC system, and endure it like an ordinary citizen. Even if he argues that he is above the rule of law, we are seeing him sit there like anyone else.

Stephanie: Does the gag order, which has been imposed on Trump and bars him from attacking people involved in the trial, set any sort of precedent for presidential trials going forward?

David: The gag order comes from Trump’s habit of attacking witnesses, the family of prosecutors and judges. I don’t know that you would get one of these as a standard practice with presidents. But each time you have a defendant who has that kind of history or who starts doing that, there’s a good chance of the gag order. Still, Trump has been able to exploit the weirdness of this case and get away with things that other defendants would not have.

Stephanie: Can you say a bit more about how he’s exploited the weirdness of the case?

David: Anytime he gets in trouble for saying something, he says, Look, I’m a politician running for office. I have to be able to make political speeches. It’s unfair for me to be muzzled. That’s something that the judge has had to figure out: How do you write a gag order that allows Trump to be a candidate but protects the witnesses and the sanctity of the case?

To me, it also looks like Trump is daring the judge to jail him—like he concluded that getting sent to jail for a night or a weekend would actually help him politically. So the judge has to decide how much he protects the sanctity of the system by enforcing the gag order versus giving Trump an opportunity to undermine the system in an even bigger way by claiming political persecution.

Stephanie: You wrote earlier this week that some of the best-sourced reporters in the courtroom are saying that Trump largely wants to avoid jail time. Is this a situation where Trump can spin either option in his favor?

David: I think it’s very “heads I win, tails you lose.” If the judge lets him get away with it, he can talk all kinds of trash about the proceeding, and that’s a win for him because he wants to undermine the trial for political reasons. If he gets thrown in jail, I’m sure he would hate it, but it also gives him another political talking point.

Stephanie: It seems like a very tight line for Judge Juan Merchan to walk.

David: It’s really challenging. Every judge Trump has recently come before has had to deal with this in some way or another. They’re trying to figure out: How do we keep him in line without that becoming the story? They want the focus to be on the facts of the case. And that’s really hard to achieve with Trump, because he doesn’t want the focus to be on the facts.

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