Jury selection began Monday in the first of former President Donald Trump’s criminal cases to go to trial, a case legal experts say is the weakest and most political but could nevertheless result in a conviction in the overwhelmingly Democratic New York county.
The trial for Trump’s hush money case, expected to last between six and eight weeks, will keep Trump in court each day amid a busy campaign season. Trump is facing 34 felony counts for allegedly falsifying business records relating to hush money payments made to porn star Stormy Daniels in the lead up to the 2016 election, with each count carrying a maximum penalty of four years in prison.
Criminal defense attorney and legal analyst Philip Holloway told the Daily Caller News Foundation that the best Trump can hope for is a hung jury.
“It’s not likely Trump will get anything close to a fair trial in Manhattan where he only got 12% of the vote in 2020,” he said. “If he can manage to get one or two jurors who are truly open minded, he may be able to avoid a conviction.”
Over 50 potential jurors were dismissed Monday for saying they could not be impartial, according to pool reports.
Democratic Manhattan District Attorney Alvin Bragg indicted Trump last April, alleging Trump sought to conceal another crime, potentially a violation of federal election law, when he reimbursed his former attorney Michael Cohen for the $130,000 payment made to keep Daniels quiet about a claimed affair, recording it as payment for “legal services.”
Holloway said it is “mind boggling” that the judge “has not seen fit to dismiss this indictment as a matter of law since it fails to put Trump on notice of exactly what he needs to defend against.” By arguing the records were falsified in furtherance of another crime, Bragg increased what is typically a misdemeanor charge to a felony.
“The felony ‘Business Record’ statute requires Bragg to prove that Trump falsified records to cover up a crime – yet it fails to point to specifically what crime Trump is alleged to have covered up,” he said. “Otherwise the case is only a misdemeanor at best and the statute of limitations expired years ago.”
New York Law School professor and Criminal Defense Clinic director Anna Cominsky told the DCNF it’s likely jury selection will take a couple weeks due to the case’s nature.
“The two biggest issues are the politics surrounding the case and then the media surrounding the case,” she said.
Jurors will be asked questions regarding their affiliation with groups like the Proud Boys and “QAnon,” their media diet and any “political, moral, intellectual, or religious beliefs” that may interfere with their approach to the case. Other questions gauge their disposition toward the former president, such as whether they’ve attended an anti-Trump rally or volunteered for his political campaign.
“It is impossible to say with any certainty what the outcome will be,” John Malcolm, vice president for the Heritage Foundation’s Institute for Constitutional Government and former deputy assistant attorney general in the DOJ’s Criminal Division, told the DCNF. “Of the four criminal cases pending against former President Trump, this one is viewed – rightly so, in my view – as the most overtly political.”
“Much of the evidence will come from Michael Cohen, a convicted perjurer with a seeming vendetta against his former boss,” he continued. “Nonetheless, Trump is not terribly popular in New York City, where the case is being tried and 34 felony counts are not a trifling matter.
Cohen, who plead guilty in 2018 to making false statements, along with other charges like tax evasion and campaign finance violations, is a key witness for prosecutors. Judge Juan Merchan blocked Trump’s bid in March to stop Cohen, who his attorneys wrote is a “serial liar,” from testifying.
UCLA law professor Richard Hasen wrote for the Los Angeles Times Sunday that Trump could have “serious grounds for appeal” even if he was convicted.
“It is far from clear that appellate courts would treat the hush money payments as legitimate campaign expenses that needed to be reported, as opposed to personal expenses,” he wrote. “And it is uncertain that failing to report a campaign expenditure required by federal law can be a violation of New York state election law against promoting ‘the election of any person to a public office by unlawful means.’”
