The Trump Trial’s Extraordinary Opening

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The defendant nodded off a couple of times on Monday. And I have to confess, as a spectator in an overflow courtroom watching on closed-circuit television, so did I.

Legal proceedings can be like that. Mundane, even boring. That’s how the first couple of days of the trial in new People of the State of New York v. Donald J. Trump, Indictment No. 71543–2023, felt much of the time. Ordinary—despite being so extraordinary. And, frankly, that was comforting. The ordinary mechanics of the criminal-litigation process were applied fairly, efficiently, and methodically to a defendant of unparalleled notoriety, one who has devoted himself to undermining the rule of law.

Certainly the setting was ordinary. When the Criminal Courts Building, at 100 Centre Street in Lower Manhattan, first opened in 1941, an architectural critic lamented that the Art Deco structure, a New Deal/Public Works Administration project, was “uncommunicative.” Eight decades later, it still has little to say. Raw and spartan, it’s a bit of a mystery to people who aren’t familiar with it (including me, a civil litigator who, despite having been admitted to the New York state bar some 35 years ago, practiced mostly in federal and Delaware courts). A pool reporter yesterday described the surroundings as “drab.”

Drab indeed, but busy—very busy. There’s never a want of bustle here, of the sort you would expect. As the former federal prosecutor Andrew Weissman put it this week, 100 Centre is, “well, Dickensian—a beehive of activity with miscreants, state prosecutors, judges, defense lawyers, probation officers, court security [and] families—in dark, dingy halls and courtrooms.” It’s a bit like New York City as a whole: How it functions, with the volume it handles, never ceases to amaze.

And how the court manages to keep track of things, Lord only knows. In contrast with the federal courts or even New York’s civil courts, it has no electronic, publicly accessible docket. The Supreme Court of the State of New York for the County on New York, Criminal Term, is, as one courthouse reporter said last month, “stuck in the past.” It’s a tribunal “where the official record is a disorganized and incomplete mass of paper with no accounting of what’s inside.” The records come in brown accordion folders—Redwelds, lawyers call them—and what judges and clerks decide to put in them is the record, and what they don’t is not.

But somehow it works. Somehow the court manages to dispose of thousands of cases a year, involving all manner of defendants and offenses. A calendar emailed to journalists by the Manhattan District Attorney’s Office listing the week’s anticipated court appearances gives you the flavor. It catalogs names seemingly of many ethnicities, with a couple of corporate entities to boot. A hodgepodge of alleged charges, including the violent and the corrupt: robbery, conspiracy, forgery, criminal mischief, identity theft, enterprise corruption, stalking, murder, attempted murder, sex trafficking, grand larceny, attempted grand larceny, possession of a forged instrument, offering a false statement for filing.

And the list contained three cases involving the crime of falsifying business records, one of which was set for trial on Monday, April 15, in Part 59, Courtroom 1530—People v. Trump.

Nothing on the calendar, other than the defendant’s readily recognizable name, would have told you there was anything special about the case. In that sense, it was ordinary. But the hubbub outside—a handful of protesters, multiple television cameras, and a long line for the press and other spectators—made clear that something somewhat special was afoot. An overflow courtroom down the hall from the main courtroom offered a closed-circuit television feed of the proceedings. Those who had lined up went through an extra set of security screeners and machines—mandated, we were told, by the United States Secret Service.

But still, so much was ordinary—the stuff of the commencement of a criminal trial, housekeeping of the sort you’d see in virtually any court about to try a criminal case. That began promptly at 10:00 a.m. on Monday, when Judge Juan Merchan assumed the bench. There were loose ends for the judge to tie up, pending motions to decide. Merchan denied the defendant’s motion to recuse, reading, in even tones, an opinion from the bench. The motion was frivolous; the result unsurprising. And then the parties argued some motions in limine—pretrial efforts to exclude evidence.

For example, would the notorious Access Hollywood tape that rocked the 2016 presidential campaign be played for the jury?  The prosecution said it should be: An assistant district attorney said the tape would elucidate why the defendant and his campaign were so hell-bent, to the point of falsifying business records, on keeping additional instances of the defendant’s miscreant conduct with women out of the public eye. The defense, of course, argued that playing the tape would be prejudicial. After all, this wasn’t a case about sexual assault.

The judge allowed that the tape’s existence provided context for the business-records charges but ruled that actually showing the tape to the jury would be prejudicial. Instead, the jury would be given a transcript. And speaking of sexual assault, prosecutors tried to get in an excerpt from Trump’s deposition in the E. Jean Carroll sexual-assault and defamation cases in which Trump testified that he was a “star,” and that stars historically get to do to women what Trump said on the Access Hollywood tape that he liked to do to them. Judge Merchan rightly said no, he would not allow the jury to hear that. It would be too much, too beside the point of what this case (unlike the Carroll cases) is actually about.

But as unusual and colorful as the factual predicate for the evidentiary motions was, the argument wasn’t all that interesting. It was rather low-key, in fact. Perhaps that was because none of the proffered evidence was new. But it was also because the arguing of pretrial evidentiary motions, however crucial they may be (although these, frankly, weren’t), is seldom scintillating. I can’t imagine that Donald Trump and I were the only ones watching who dozed off.

Then came jury selection, which took the rest of Monday, all of yesterday, and will probably consume tomorrow and Friday as well. (The judge will be handling his other cases today.) That was a bit more interesting, but slow going at first. Again, the ordinary met the extraordinary. Ninety-six potential jurors were brought in. The judge provided an overview of the case in the broadest terms, describing the charges in a few sentences; explained what his role and what the jury’s would be; and read the names of the cast of characters (some would be witnesses, others would simply be mentioned, including—full disclosure—my ex-wife). Still, it was mundane. It was pretty much what a judge would say in any big case.

And jury selection was a bit tedious; in a case like this, it simply has to be. Jurors were asked to give oral answers—some 42 of them, including a number with multiple subparts—to a written questionnaire. In substance: Where do you live? What do you do? What’s your educational background? What news sources do you read? What’s your experience with the legal system? Have you ever been to a Trump rally or followed him on social media? Have you belonged to any anti-Trump groups? And on and on and and on. But the most important inquiries came toward the end of the list: questions asking whether the prospective jurors could be fair. Occasionally the judge would interject, when an unusual or unclear answer was given. And once in a while there was a moment of levity: One woman—in response to a question about having relatives or close friends in the legal field—noted that she had once dated a lawyer. “It ended fine,” she volunteered, with a flatness of tone that betrayed no hint of nostalgia or loss.

This process took well over a day, and included brief follow-up questioning—“voir dire”—by the lawyers for both sides. But the judge did take a shortcut, one that saved a great deal of effort: After describing the case, but before proceeding to the individual-by-individual, question-by-question process, he asked the entire group the bottom-line question: Do any of you think you couldn’t judge the case fairly? Roughly two-thirds of this first batch of potential jurors said they couldn’t. That was extraordinary—a reflection of the fact that everyone knows who the defendant is, and that not many people lack a strong opinion about him.

And during the lawyers’ voir dire, a few interesting moments did occur, mostly when Trump’s lawyers pulled out social-media posts that they claimed showed possible bias on the part of the remaining candidates in the jury pool. One man was stricken by the court for cause because he once posted that Trump should be locked up.  The Trump lawyers attempted, but failed, to get the court to strike a woman whose husband had posted some joking commentary about the former president. The judge’s response: That’s all you have? He allowed the juror to stay, and left it to counsel to decide whether to use their limited number of peremptory strikes.

In the end, for two days, the extraordinary intertwined with the ordinary, as it should in a case like this one. As one young woman from the Upper East Side, now to be known as Juror No. 2,  put it during the selection process, “No one is above the law.” Let’s hope that sentiment prevails.


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