How Trump is using courtroom machinations to his political advantage
- Written by Tim Bakken, Professor of Law, United States Military Academy West Point
The second week is wrapping up in former President Donald Trump’s first criminal trial on charges from the state of New York related to paying hush money to an adult film star. So far, the jury has been selected[1], but no other proceedings have begun.
The Conversation U.S. interviewed Tim Bakken[2], a former New York prosecutor and now a legal scholar teaching at West Point, and Karrin Vasby Anderson[3], a political communication expert at Colorado State University, to find out what overarching themes they have observed, both in the courtroom and outside it.
Is this trial proceeding normally?
Bakken: It seems like an ordinary trial, but it is an extraordinary trial underneath if we really look at some of the details. The first thing that struck me was on Day 1, when Judge Juan Merchan questioned 96 jurors. Fifty of them said they could not be fair[4] to Trump. On Day 3, 48 of that day’s 96[5] said the same thing.
That does not bode well for a defendant in a jurisdiction where Democrats outnumber Republicans 9 to 1[6].
In addition, the judge did not make an accommodation to alleviate the possible difficulty that such antagonism represents. If 50 out of 96 people raised their hands and said they couldn’t be fair because of the color of the defendant’s skin, that would signal a problem. In a trial, that problem is addressed through allowing the defense to ask more questions of the jurors and to get more peremptory challenges, which allows them to dismiss a juror without having to explain why.
There are 10 already allotted because this is a low-level felony trial. In other cases in New York, you would have 20, such as a murder case. And the judge has the discretion to increase that number. He could have done that in this case, but he didn’t.
How fast is the judge moving?
Bakken: Merchan has told Trump he may not be able to attend his child’s high school graduation, scheduled for May 17[8]. That indicates that the judge is moving apace.
But in many cases in New York – on Fridays, for example, when a defendant or defense lawyer or prosecutor is Muslim or Jewish – some or all of the entire day will be taken off by the judge. There won’t be any trial.
I think the judge will let Trump attend the high school graduation, because otherwise he might seem to treat Trump a little bit differently than other defendants.
What is most important for the public to understand so far?
Anderson: I think it’s important for the casual observer, who might wonder whether being on trial for a felony was hurting Trump’s presidential campaign, to understand that he’s strategically using the trial to his advantage.
Voters following the trial in the mainstream media are hearing from experts that the legal proceedings are progressing relatively normally and the system is standing up under the unprecedented circumstances of this case.
But in the conservative media sphere, Trump is using the trial as a campaign strategy pretty effectively, stoking his base’s fears and quoting pundits and hosts from Fox News, Newsmax and OAN who echo his framing of the trial.
Trump has said the requirement to be in the courtroom every day is harming his ability to campaign[9]. The Guardian reported, however, that while he is in court, his “Truth Social page is putting up new posts minute by minute[10].”
If you look at those posts, you see a series of complaints about the case interspersed with pro-Trump campaign messaging and posts telling voters to be afraid of what he says is rampant crime under Joe Biden’s tenure as president.
Individually, the campaign posts are consistent with Trump’s usual messaging. But when Trump layers messages about crime with others about an allegedly corrupt justice system, the goal is to not only intensify voters’ fears but also tell voters they should be afraid because powerful people are coming for him and are going to come after regular people next.
Trump is also charging that the process of his trial is undermining democracy. He posted a video[11] in which his close adviser Stephen Miller urged, “So when you hear them say that democracy is on trial, they’re right. Democracy is on trial. Freedom is on trial. The rule of law is on trial. … If Donald Trump is convicted then all of these principles are convicted and destroyed with him.”
This sets up a catch-22. If Trump is not convicted, he gets to say he was exonerated. If he is convicted, then he just pivots to this charge that a normally operating courtroom is what’s undermining justice and democracy – not his actions or the actions of his campaign.
If Trump was just posting on his social media account, it wouldn’t be nearly as powerful. But Fox News, OAN and Newsmax are really functioning as his campaign surrogates. Since much of the country is paying attention to that media space[12], that’s a really consequential campaign strategy. It’s savvy of him to use the court proceedings in this way.
Donald Trump walks outside during a break in trial proceedings.
Mark Peterson/Pool Photo via AP[13]
Is any of what Trump is saying a fair criticism or statement?
Bakken: The New York district attorney decided to prosecute Trump in this case. He didn’t have to. It seems unquestionable that Trump filed or made false business documents. That’s a misdemeanor. And in this instance, the misdemeanor statute of limitations had run out by the time the district attorney issued the charges. But the prosecutor chose to say the actions were related to another crime, which makes them felonies.
Anderson: The charges also have context. Maybe no other businessperson would be prosecuted for this filing of paperwork. But that’s only half of the problem. Donald Trump would not be in trouble for filing this paperwork if he hadn’t done it to allegedly illegally influence an election.
I think that’s actually why Trump is so aggressively pushing his narrative of “election interference.” He knows that the charges against him are really about breaking campaign finance laws and his conduct in an election more than a particular business filing.
Bakken: In the last week or so, it came out that Merchan had contributed to Democratic candidates, including President Biden, in the past. It was reportedly a total of US$35[14], which seems very minimal. But one of New York’s legal ethics leaders, Stephen Gillers, a professor at New York University, said it is a judicial ethics violation, though he said it would likely only merit a warning[15] and not removal from the case.
What does the trial mean so far in terms of politics or the 2024 presidential election?
Anderson: I think the media has to report on the facts on all sides of this trial. But I worry that it may not actually be as consequential as maybe people who are following it think that it will be, because many undecided voters have opted out of political news[16] altogether.
Bakken: The trial emphasizes an extraordinary level of political antagonism between the parties, and also an extraordinary reluctance of people who are not inclined toward party politics to tune out and protect themselves.
The people who are tuning out might not be strong advocates, politically, for one side or the other but the people who would be neutral if they collected all the information. They could be the moderators, the good-faith, middle-minded people who can help bridge the gap between the political combatants.
References
- ^ jury has been selected (www.nytimes.com)
- ^ Tim Bakken (scholar.google.com)
- ^ Karrin Vasby Anderson (scholar.google.com)
- ^ Fifty of them said they could not be fair (www.wpr.org)
- ^ 48 of that day’s 96 (www.nbcnews.com)
- ^ Democrats outnumber Republicans 9 to 1 (elections.ny.gov)
- ^ Christine Cornell via AP Pool (newsroom.ap.org)
- ^ scheduled for May 17 (apnews.com)
- ^ harming his ability to campaign (www.yahoo.com)
- ^ putting up new posts minute by minute (www.theguardian.com)
- ^ posted a video (truthsocial.com)
- ^ much of the country is paying attention to that media space (www.pewresearch.org)
- ^ Mark Peterson/Pool Photo via AP (newsroom.ap.org)
- ^ total of US$35 (www.cnn.com)
- ^ only merit a warning (www.cnn.com)
- ^ undecided voters have opted out of political news (www.theguardian.com)
Authors: Tim Bakken, Professor of Law, United States Military Academy West Point
