Understanding the strategies at play
Manhattan District Attorney Alvin Bragg inherited a years-long grand jury investigating whether former President Donald Trump, as a presidential candidate in 2016, paid to cover up an alleged 2006 affair that could have damaged his campaign.
Should the criminal charges not be dismissed, Trump’s pending trial for breaking the law will be determined by the court’s legal framework and the public’s attitude. The legal procedures are demarcated and should be independent of public opinion.
The prosecution will lean heavily on facts based on the witnesses’ knowledge. He will appeal to the jurists based on weighing evidence to enforce the principle that all citizens, even a former president, are equal before the law.
The defense will attack the witnesses’ reliability to provide unbiased, verifiable evidence. That effort began outside the courtroom and before the trial started. Citizens on the jury will be influenced by what they learn from the media. Despite the prosecutor and defense rejections of prejudiced potential jurists, all jurors will have some image of the accused to guide their decisions.
Trump has begun establishing his image as a victim of a political conspiracy by Democrats to stop him from being the Republican presidential candidate. While that accusation cannot be proven in court, it could undermine the legitimacy of the prosecution’s witnesses and even the prosecutor and the judge in the minds of the jurists.
The defense just needs one jurist to have a reasonable doubt as to whether Trump intended to hide criminal behavior. The jury is hung if that individual disagrees with the other jurors on guilt. No decision is reached, and although Trump is not found innocent, neither was he found guilty. The case could be retried, but that isn't certain.
To get a complete picture of the legal and political elements of Trump’s current court case, it is best to do a Q&A on them.
What is an indictment?
An indictment is a formal accusation from a grand jury of residents, not a conviction. The indictment means that a grand jury has found enough evidence to formally charge them with the said crime.
Are grand jurors chosen through politics?
They are chosen randomly from the same list of jurors for a trial jury. They should represent a cross-section of the resident population from the jurisdiction where a trial will take place. There were 23 grand jurors in this case, with a majority of 12 required to agree on indicting Trump.
Trump suggested that the grand jury be held in Staten Island, not the financially centered Manhattan, which has many more Democrats than the primarily residential Staten Island. However, while each New York City burrow has a District Attorney (DA), most financial cases are tried in Manhattan.
Does the accused have a representative at the grand jury proceedings?
No, the only people present are the jurors, a prosecutor, and a court reporter. All are sworn to secrecy. No judges are present. Primarily the prosecutor questions the witnesses, who are under oath, as if in a trial. The jurors may ask questions as well. Republicans argue that the grand jury hears only one side and, therefore, was easily swayed by the prosecutor to indict Trump.
What does charging Trump on 34 counts mean?
The indictment listed 34 felony counts under a New York statute. While each count represents a separate instance of alleged misconduct, they are all part of one crime for being indicted.
Is D.A. Bragg politically motivated to have Trump jailed?
Trump trumpets that message on social media, saying that Bragg “campaigned on the fact that he would get President Trump. ‘I gotta get him. I’m going to get him.’ South Carolina Senator Lindsay Graham said, “This is political persecution.”
Bragg said during his campaign to become the new D.A. for Manhattan, “I have investigated Trump and his children and held them accountable for their misconduct with the Trump Foundation. I know how to follow the facts and hold people in power accountable.”
As PBS reported, Bragg folded the Trump investigation after getting into office because he felt there was insufficient evidence to pursue a conviction. He changed his mind after he won his case against the Trump Foundation. Its top official Allen Weisselberg pleaded guilty to 15 felony charges.
Is Judge Juan Merchan politically biased against Trump?
He did sentence Trump’s close confidant Allen Weisselberg to prison and presided over the Trump Organization tax fraud trial. However, Nicholas Gravante, the attorney who represented Weisselberg in his plea, said, “Judge Merchan was efficient, practical, and listened carefully to what I had to say.”
Earl Ward, a trial attorney, and chair of a public defender nonprofit, has watched Merchan preside over cases. Ward says, “He’s fair, and his rulings are consistent with the law.” But, if it’s a close call, he lands on the prosecutor’s side.
As a citizen, Merchan donated $35 to Democratic causes in 2020, which included $15 to President Biden’s campaign and $10 to a group dedicated to “resisting … Donald Trump’s radical right-wing legacy.”
Consequently, in his post-arraignment speech, at his Mar-a-Lago resort in Palm Beach, Trump said, “I have a Trump-hating judge with a Trump-hating wife and family whose daughter worked for Kamala Harris.” Donald Trump Jr. shared a link on social media that included a photo of Merchan’s daughter. In the 24 hours after Trump’s arraignment, Merchan and his family received multiple threats.
What does the D.A. have to prove to the trial jury?
One word provides the answer: intent. Bragg must prove that Trump knowingly intended to conceal criminal conduct. For example, he is accused of falsifying internal business records at his private company to hide a $130,000 payment to adult film actress Stormy Daniels. The payment stopped her from publicly claiming they had a 2006 affair. The payments were given to her a couple of weeks before the November 2016 election to avoid the incident from going public and harming his chances of winning the election.
Bragg also said that Trump “orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects.” This was in regard to another alleged affair he had.
What made these efforts a federal crime?
Under New York law, falsifying business records is a misdemeanor charge. Still, if there is an “intent to defraud” that includes an intent to “commit another crime or to aid or conceal” a crime, it becomes a felony. The other crime could be violating the federal campaign finance law or failing to pay taxes on the payments involved.
John Edwards, a former Democratic presidential candidate, was also charged with this crime in 2012 for paying for a scheme to cover up an affair. Like Trump, Edwards concealed a payment that amounted to an undisclosed campaign contribution to benefit Trump’s 2016 bid for president.
He was acquitted on one count, and the jury failed to reach a verdict on the other counts. The jurors afterward said there was confusion over the exact requirements of campaign finance law, discomfort with unusually using the law to punish a candidate’s personal misdeeds, and concerns with the credibility of a critical witness.
Could the court dismiss the charges without a trial?
Yes, if the defense can convince the judge that Bragg linking a state misdemeanor charge to violating federal law is not allowable. Some legal experts question Bragg’s legal strategy. If the judge allows that link to be made, the defense could appeal his decision, delaying the trial's start date. They might try to push it past November of 2024.
If Trump is found guilty, will he go to jail?
First, a conviction would not legally prevent Trump from continuing to run for president. While Trump could face up to four years in prison for each count, legal experts say he would not receive jail time as a first-time offender with no criminal record.
Will the trial’s date influence who is the Republican Presidential Candidate?
You bet! Trump’s attorney asked that the start of the trial be in spring. If the judge accepts that request, the trial begins in May. The expectation is that it will take a couple of months. The Republican Convention is scheduled for July 15-18, and their primaries and state caucuses to choose presidential candidates to begin in March. By asking for a spring date, Trump expects to make his trial the centerpiece issue of the Republican Primaries and its Nominating Convention. Just try to push him off the front pages.
Has the indictment hurt Trump?
A CNN poll from April first shows that Trump’s indictment has not hurt him. He started with a favorability rating of 32% in January 2023 and had 34% in the poll. It appears to have ticked up slightly, with Republicans moving from 68% to 72%. The poll’s margin of sampling error is +/- 4.0%. This implies that Trump, at this stage in the court process, is solidifying his base and on the way to winning his party’s primaries.
However, 60% of Americans approved his indictment, and while the Ds and Rs were firmly in favor or opposed, independent voters, 62% to 32% supported the indictment. That trend points to a repeat of 2020, when Biden won most independent voters in the swing states to beat Trump.
Whatever the verdict in this trial, Trump has hammered home the message that his legal problems are all about politics. That spin may resonate with the public since, according to the CNN poll, “about three-quarters of Americans say politics played at least some role in the decision to indict Trump, including 52% who said it played a major role.”
That attitude may not push independents to vote for Trump, but they might sit out the election and not vote, hurting the Democratic candidate more than Trump.
Bottom Line: Does it matter whether Trump is found guilty or innocent?
No polls have been taken to measure how this trial’s verdict would impact Trump’s electability. But given what we know, his base will hold, and they account for over 50% of the Republican primary voters. So, if Trump is found guilty, he could still become the Republican Presidential nominee.
The more significant stumbling block to a Trump victory in the primaries and the general election is how the other prominent potential indictments, which tie him to election interference in Georgia and the January 6 insurrection, play out.
It is highly likely that if there are other indictments, they will come before the March 2024 Republican Primaries begin. However, it is also likely that the resulting trials, if not dismissed, may begin after November 2024.
Like the leaders of other nations who have been indicted for criminal activity, Trump may be able to delay his trials for a long time. Typically, high-profile court cases of former or current leaders of other democratic countries (e.g., Israel, Brazil, France) take longer than a year.
The path forward for Trump is to continue fighting all the pending indictments and declare innocence in all potential trials. In winning, he’ll declare unmitigated victory; in losing, he’ll claim that our democracy is dead and predict an uprising to save it.
Nick Licata is the author of Becoming A Citizen Activist and Student Power, Democracy and Revolution in the Sixties. He is the founding board chair of Local Progress, a national network of over 1,300 progressive municipal officials.
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