On day one of the first criminal trial of a former president of the United States, Donald Trump appeared to nod off for a few minutes. It happened again on day two. His head dropped to his chest several times, before jerking back upwards. Was it a sign that the 77-year-old defendant is as doddery as President Joe Biden, his 81-year-old rival? Or was #SleepyDonald attempting the ultimate “baller” move by showing his disdain for the courtroom proceedings? He seemed surprisingly relaxed about making legal history.
Opponents of Trump are cock-a-hoop that he is finally facing justice. They claim he is being held to the same legal standards as any other private citizen. But does anybody suppose Trump would be in court today over alleged “hush money” payments to the porn star Stormy Daniels as long ago as 2016 if he were not running for re-election this year? Guilty or not, it seems very unlikely.
Those who are eagerly predicting Trump’s downfall should beware: there is a fair to middling chance he will escape conviction. A legal victory would thrill his supporters and turbo-charge his campaign to win over Republican and independent waverers. If the judgement goes against him, he could still win in the court of public opinion. Whatever happens, there is no chance he is going to jail.
The explosive, underlying accusation is that Daniels was paid to conceal the truth to pervert the course of the election
It is far better for the Democrats to pound Trump on policy issues, rather than to place their faith in the vagaries of “lawfare”. At the very moment that Biden has been rising in the polls, Trump is getting wall-to-wall coverage of his legal travails. According to a new AP/Norc poll, 35 per cent of respondents think Trump did nothing illegal. A further 31 per cent believe he behaved unethically but not illegally by paying off Daniels.
Trump insists he is the victim of a show trial, the first of four criminal cases against him. Outside the courtroom, he glowered, “It’s a scam trial. It’s a political witch hunt.” He added, “This is about election interference,” because attending court will prevent him from being out on the campaign stump.
Like it or not, Trump has a point. While the legal drama is unfolding in Manhattan, Joe Biden has been on a three-day swing through Pennsylvania, a hotly contested battleground state. Trump’s angry charge about election interference is particularly well-aimed because the nub of the case against him itself revolves around the very same thing. Trump is being prosecuted for paying $130,000 to Daniels on the eve of the 2016 election. She pocketed the money in exchange for staying quiet about allegedly having sex with him a decade earlier in 2006. In fact, Trump’s disillusioned fixer, Michael Cohen, has already served jail time for paying Daniels to sign a non-disclosure agreement (among other offences) and will be giving compelling evidence against his former boss in court.
Yet handing over money in exchange for silence is not illegal. There is a paper trail suggesting the sum was falsely logged as “legal expenses”, but this type of fraud is usually treated as a misdemeanour. The explosive, underlying accusation is that Daniels was paid to conceal the truth from voters about her alleged encounter with Trump in order to pervert the course of the election. This is why Trump has been hit with 34 charges of falsifying business records.
How will a jury react to the evidence? It has been fun to hear prospective jurors quizzed about bias. By last night seven had been chosen including the foreman, a native Irishman who reads the New York Times and the Daily Mail, and watches Fox News and its liberal counterpoint MSNBC. At one point, Trump smiled when a potential juror said he had read three of his books, including The Art of the Deal. He failed to make the cut.
In the coming weeks, the gutsy Daniels is likely to be cross-examined. We still don’t know for sure that she slept with Trump. Although she passed a lie detector test at one point, Trump has always denied having sex with her. Daniels is bound to be grilled over whether she was trying to extort money from him at a vulnerable moment, shortly after his crass remarks about grabbing women by the “p***y” on the Access Hollywood tape came out. It only takes one juror to take a dim view of her behaviour — or anything else — for the trial to result in a hung verdict.
Moreover, Trump is likely to repeat his claim that he was trying to shield his wife Melania from embarrassing allegations rather than to deceive the electorate. The alleged hanky panky with Daniels took place in July 2006 when Melania was pregnant with her son Barron, now 18 (that’s how old the events in this case are). Melania has stayed as far away as possible from court but is said to be “furious” at the claims of a “porn hooker”, as she reportedly calls Daniels.
Those who are eagerly predicting Trump’s downfall should beware: there is a fair to middling chance he will escape conviction
Complicating this approach, however, will be evidence that Trump also had an alleged 10-month affair with former Playboy model, Karen McDougal, that same year (he denies it). McDougal was paid for exclusive rights to her story, which was then deliberately suppressed by Trump’s pal at the National Enquirer, David Pecker, on a “catch and kill” basis. The judge has ruled that she will be allowed to appear as a witness, but jurors cannot be told about Melania’s pregnancy.
On Tuesday, Trump dropped an important hint about his defence strategy. He intends to blame the hush money payments on his aides, particularly Cohen. “An accountant I know marked it down as a legal expense,” he claimed outside court. This may not wash as there appear to be recordings that implicate Trump in various plots. However, some legal experts claim he might be able to persuade a jury to downgrade the criminal charges to a misdemeanour. In this scenario, he would be found guilty of lesser offences, which would immediately expire under New York’s six-year statute of limitations. It would be the next best thing to winning.
But let’s assume Trump is found guilty, a perfectly plausible outcome. In the AP/Norc poll, 50 per cent of voters (only half?) said a conviction would render him unfit for office. But we won’t be seeing Trump in an orange prison jumpsuit as a result of this case. It is inconceivable that he will be jailed for multiple political and practical reasons, including his right to round-the-clock secret service protection. It has given him a sense of impunity beyond a hardened mobster’s dreams. If he can’t be jailed, he can strut, insult the judge and say what he likes outside court. This trial is not going to stop Trump being Trump.
