The Trump trials: A former president faces justice

On March 25, in room 1530 of Manhattan Criminal Courthouse, a trial unlike any other is scheduled to begin: A criminal trial of a former U.S. president, Donald Trump.

• Trump's first criminal trial set to begin March 25 as judge denies bid to dismiss "hush money" case

"We've never been in a situation like this where we've been faced with the prospect of holding a former leader to account," said Melissa Murray, who teaches constitutional law at the New York University School of Law.

Andrew Weissmann, who teaches criminal procedure at NYU, said, "If you think of American history, there are sort of defining moments: There's the actual promulgation of the Constitution, there's the Civil War. And I think that, without hyperbole, this is a defining moment in terms of having a criminal case [of a former president]."

To be clear, Trump is no stranger to the legal system, and recent civil judgments may cost him nearly half a billion dollars.

• Trump must pay $83.3 million for defaming E. Jean Carroll, jury says
• Judge in Trump's New York fraud case orders him to pay $354 million in penalties, plus millions more in interest

But what makes this a defining moment, say Weissmann and Murray, is that he is facing 91 criminal charges in four different courtrooms. In New York, Trump is accused of falsifying business records. In Washington, D.C., and Georgia, he is charged with allegedly conspiring to overturn the 2020 election. And in Florida, he was indicted for keeping classified documents at his Mar-a-Lago property.

Washington: 

• Special counsel says Trump's attempts to dismiss federal election case "are meritless"
• Judge rejects Trump's motion to dismiss 2020 federal election interference case
• Judge Tanya Chutkan denies Trump's request for her recusal in Jan. 6 case

Georgia: 

• Georgia indicts Trump, 18 allies on RICO charges in election interference case. Here are the details.
• Scott Hall becomes first Georgia RICO defendant in Trump election interference case to take plea deal
• Why guilty pleas in Georgia 2020 election interference case pose significant risk to Donald Trump
• Trump seeks dismissal of Georgia criminal case, citing immunity and double jeopardy

Florida:

• Trump hit with new charges in superseding indictment as special counsel expands Mar-a-Lago documents case
• See pictures from Trump indictment that allegedly show boxes of classified documents in Mar-a-Lago bathroom, ballroom
• Timeline: The Justice Department's prosecution of the Trump documents case
• Mar-a-Lago worker struck cooperation deal with prosecutors in Trump documents case, ex-lawyer says

What's at stake now for Trump is not just his finances, but possibly his freedom.

Murray said, "The fact that we have these four indictments shows that there is an appetite for accountability. But is he too much for the American legal system? I think that's what we're going to find out."

Because overshadowing this tangle of trials is the fact that Defendant Trump is also Candidate Trump. 

Robert Ray, a former federal prosecutor who successfully defended Trump when he first faced impeachment in late 2019, said, "I think the country is gonna rue the day that we ever traveled down this road. What federal prosecutors want is ... the public to come to accept that the defendant was afforded fairness. I think there's a good percentage of the country right now that doesn't believe that."

And that is why professors Weissmann and Murray put together what they say is an impartial guide to "The Trump Indictments."

Weissmann said, "There are facts that are disputed in four criminal cases, and our job is to translate that for people, hopefully who really will understand that they need to get engaged."

They begin not with the New York case, but the one that they believe levels the most serious charges: United States of America vs. Donald Trump, being heard in Washington, D.C. Last August, Jack Smith, the special counsel appointed by Attorney General Merrick Garland, charged Trump with conspiring with others to interfere with the results of the 2020 Presidential election. The indictment unsealed charged Trump with conspiring to defraud the United States.

"The sort of gist of it is that you have a plot to disrupt the counting of the votes," Weissmann said.

• Trump indicted by grand jury in special counsel Jack Smith's Jan. 6 investigation

Smith alleges Trump knowingly made false statements about election results in states like Georgia, and according to court filings cites as evidence Trump's own social media posts, like this one from December 3, 2020, in which he falsely accused Democrats of stuffing ballot boxes:

Wow! Blockbuster testimony taking place right now in Georgia. Ballot stuffing by Dems when Republicans were forced to leave the large counting room. Plenty more coming, but this alone leads to an easy win of the State!

— Donald J. Trump (@realDonaldTrump) December 3, 2020

Smith also alleges "the Defendant lied" to Georgia Secretary of State Brad Raffensperger to induce him to alter Georgia's vote count in that now-famous telephone call on January 2, 2021. ["I just want to find 11,780 votes, which is one more than we have."]

But former Trump attorney Robert Ray said a jury may hear that phone call differently. "'Finding votes' doesn't necessarily mean, 'Find me 11,000 fraudulent votes,'" Ray suggested.

He adds that Trump will argue he was exercising his right to "free speech." But attorney Weissmann counters that: "I was a prosecutor for many years. There's no first amendment protection in terms of a criminal case. If you are to rob a bank and say, 'Give me all your money,' that speech, none of that, is protected."

Special Counsel Smith announced, "My office will seek a speedy trial so that our evidence can be tested in court and judged by a jury of citizens." But that "speedy" trial (which was originally scheduled to begin in a federal courtroom in Washington, D.C. tomorrow) ran into a roadblock earlier this year, after Trump's lawyers made a claim that echoed one made by a former president 50 years ago, when Richard Nixon told interviewer David Frost, "When the President does it, that means that it is not illegal."

Trump asserts he is protected from prosecution by "presidential immunity." While that claim was initially thrown out by a federal appeals court, Trump asked the Supreme Court to weigh in. And in a win for Trump, just this past week, the justices agreed to hear arguments on the case in April.

Murray affirmed that even a case built for speed can be derailed by delays. "Donald Trump once wrote a book called 'The Art of the Deal.' This is the art of delay," she said. "And he's played it very well."

Ray said, "There's no question that it is desirable politically for Donald Trump to delay these cases until after the election, for obvious reasons. He's entitled to take that position."

It's a strategy that presidential historian Douglas Brinkley says Trump learned from controversial attorney Roy Cohn, chief counsel to Senator Joseph McCarthy in the 1950s, who also represented the Trump Organization in the 1970s.

"What Trump has going for him is that he learned how to stall and defer and postpone, kick the can," Brinkley said. "But more than that, he learned never admit defeat."

But as much as they have tried, Trump's lawyers have not been able to delay, or dismiss, the case of the People of the State of New York vs. Donald Trump. Last year, Manhattan District Attorney Alvin Bragg alleged that Donald Trump had falsified records to conceal a bigger crime: election fraud. 

"Under New York State law, it is a felony to falsify business records with the intent to defraud and the intent to conceal another crime," Bragg said. "The defendant claimed that he was paying Michael Cohen for legal services performed in 2017. This simply was not true."

Instead, Bragg said "hush money" went to pay Stephanie Clifford, an adult film star better known as Stormy Daniels, to buy her silence about an alleged affair with Trump before the 2016 election. While some legal observers question the strength of the case, Trump's former lawyer Michael Cohen was convicted of similar charges in 2018, and sentenced to three years in prison.

• Timeline: Donald Trump, Stormy Daniels and the $130,000 payment to buy her silence
• Former Trump lawyer Michael Cohen sentenced to 3 years in prison
• Trump sues Michael Cohen, alleging breach of attorney-client relationship
• Stormy Daniels says she's "set to testify" in Trump's New York criminal trial in March

Jurors chosen for Trump's trial will likely remain anonymous, and no cameras will be allowed inside the courtroom. What's more, unlike his previous civil trials, Trump will be required to be in court instead of on the campaign trail. Murray said, "This is about defending his rights, him showing up in court and being able to mount a vigorous defense to the charges against him. That's his right as a defendant."

That won't keep him from holding court outside, as he did after a recent hearing, when he told the cameras, "Nobody's ever seen anything like it in this country, it's a disgrace."

Ray said "of course" Trump will use the Stormy Daniels case as part of his campaign: "He has done that with regard to every other stage of these prosecutions. Why would this trial be any different?"

Manhattan D.A. Bragg has already asked the judge to rein in Trump with a partial gag order. But Ray blames the prosecutors for taking a candidate to trial just months before a presidential election.

Moriarty asked, "Are you saying that former leaders should never – when they are running for election – ever be held accountable for alleged crimes?"

"No, but I'm saying that the unusual circumstance that we find ourselves in is that we have four pending indictments in an election cycle," Ray replied. "That is a result that I think most people would agree is undesirable."

"But Bob, he gets to bring in his evidence, he gets to cross examine witnesses, and he could be acquitted. And that would help him in an election year."

"I think there are questions about whether or not Donald Trump can get a fair trial in the District of Columbia, as there are whether or not he can get a fair trial in Manhattan, given the potential juries," said Ray.

But professor Murray is confident that juries made up of American citizens are more than up to the task: "I think very few jurors go into there like, 'I'm a Democrat.' 'I'm a Republican.' I think they go in there like, 'I'm a juror, and I'm an American, and this is my civic duty.'"

     
For more info:

• "The Trump Indictments: The Historic Charging Documents with Commentary" by Melissa Murray & Andrew Weissmann (W.W. Norton & Company), in Trade Paperback and eBook formats, available via Amazon, Barnes & Noble and Bookshop.org
• Melissa Murray, professor of law, New York University
• Andrew Weissmann, professor of practice, New York University
• Robert Ray, partner, Zeichner, Ellman & Krause
• Presidential historian Douglas Brinkley

       
Story produced by Gabriel Falcon. Editor: Joseph Frandino. 

     
See also: 

In:
• Brad Raffensperger
• Elections
• Donald Trump
• Stormy Daniels
• January 6

Erin Moriarty

Correspondent, "48 Hours"