The Weekend Wrap: April 21, 2024

"We have our jury"

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

New York State Case - Hush Money/False Business Records

“We have our jury” - Judge Merchan made this announcement at the end of the day on Thursday, when the twelfth juror was selected for Trump’s trial.

Judge Juan Merchan (credit: Ahmed Gaber/The New York Times/Redux)

There were a couple of hiccups along the way. Seven jurors were selected by the end of the day on Tuesday. But on Thursday when the court reconvened, one of the jurors said she was concerned about her safety because information revealed about her in the media had allowed people to guess her identity. (The names of the jurors are being kept from the press and public, but the press can hear personal information that comes out during jury selection about where a juror lives, what they do for a living, and the like.) She said she was afraid and no longer thought she could be fair. Judge Merchan excused her. A second selected juror was also excused after prosecutors discovered he may have been less than candid about some of his own past brushes with the law.

Judge Merchan then admonished the media about revealing too much information about jurors and said the press could no longer report on a juror’s current or past employers. That seems reasonable; there’s no compelling reason the public needs such information and it does make it more difficult for the judge to protect the security of the jurors.

But we should also take a step back and consider how shocking it is that measures like this to protect the jury are even necessary in a case involving a former president of the United States. It’s a sad sign of how violence and violent rhetoric have become increasingly normalized in our politics:

Despite the bumps in the road, jury selection proceeded at a good pace, faster than I expected. Some had been concerned that jury selection alone could take weeks or even months. It’s a sign of an experienced judge who knows how to run his courtroom and keep things moving, as well as a sign of experienced, competent counsel on both sides.

On Friday they finished selecting the six alternates and the judge announced they had their full panel. Opening statements are set to begin Monday. As the judge said at the end of the day on Friday, “This trial is starting.”

Last week I published a preview of the trial and potential legal issues I see. If you missed it, you can find it here:

Trump Goes to Trial

Motion for Contempt: Prosecutors have already asked for the judge to hold Trump in contempt for violating the gag order by posting on social media about witnesses and potential jurors. Prosecutors have pointed to a number of Trump’s posts bashing Michael Cohen and suggesting that potential jurors are all biased against him. They asked the judge to fine Trump $1,000 for each violation and to warn him he could face jail time if the behavior continues. Judge Merchan set a hearing for Tuesday.

Who’s Your Next Witness? The defense has repeatedly asked the DA to identify who their first few witnesses will be, to help them prepare. The prosecutor refused: “Mr. Trump has been tweeting about the witnesses. We’re not telling them who the witnesses are.” Judge Merchan said he could not blame the government. When Trump’s attorney offered to promise that Trump would not post anything about the witnesses, the judge replied, “I don’t think you can make that representation” - recognizing that Trump’s own lawyers can’t control him.

Trump and his counsel are trying to make this sound terribly unfair, but there is no defense right to know the precise order of the state’s witnesses. When I was a prosecutor in D.C. I don’t recall ever being required to give that information to the defense. Practices vary, and sometimes judges require it or the information is provided as a courtesy. But it’s a courtesy, not a right, and one that could very reasonably be withheld in this case.

In the end prosecutors agreed that on Sunday night they will give Trump’s attorney the name of their first witness - and also said if Trump posts about the witness on social media, that will be the last time it happens.

The Sandoval Notice: If a criminal defendant does not take the stand, his prior crimes and other bad acts generally are not admissible to prove his character (although they are sometimes admissible for other limited purposes). In other words, the prosecution can’t introduce evidence of all the other bad things the defendant has done in order to suggest to the jury that he’s just a bad guy so he probably did this crime as well.

But if the defendant testifies, that all changes. The prosecution generally is then free to use prior convictions and other bad acts to cross-examine the defendant and challenge his credibility. That obviously can make the decision whether to testify a lot more complicated for the defense.

The New York court of appeals, in a case called Sandoval, has held that a defendant is entitled to advance notice of the prior bad acts the prosecution will seek to introduce if he takes the stand. This gives the defense plenty of time to factor that information into their decision about whether to testify and to challenge the use of any of the information. The DA has filed this Sandoval notice listing 13 prior bad acts it would seek to use to impeach Trump. It includes court findings of fraud in the New York civil case, findings of sexual assault and defamation from the E. Jean Carroll defamation cases, judicial sanctions in a frivolous RICO case Trump filed against Hillary Clinton and others (and that the court dismissed), and other past misconduct.

Judge Merchan held a brief hearing on the Sandoval notice on Friday afternoon. He said he will announce on Monday which items the state will be allowed to use.

I think it’s extremely unlikely that Trump will take the stand, so this is probably all academic.

A Fair Trial? Can Trump get a fair trial in deep-blue Manhattan? Absolutely. Having prosecuted dozens of criminal cases, I’m a big believer in the jury system. In my experience, jurors take their job and obligations extremely seriously. Even if some of them don’t like Trump personally or would never vote for him, all of them have sworn to the judge and the lawyers that they can put that aside and decide based only on the facts and law in this case. I believe they will honor that commitment.

Don’t believe those who claim a New York jury will automatically find Trump guilty, no matter what. All the politics and hype surrounding the case are not going to matter in the courtroom. All that matters is the specific criminal charges and what the evidence shows. If the state fails to prove its case beyond a reasonable doubt, the jury will acquit — even in Manhattan.

D.C. Federal Case - January 6 Allegations

This week we will finally hear the oral arguments before the U.S. Supreme Court on Trump’s claim of absolute presidential immunity. You can listen to the audio feed here at 10:00 am eastern time Thursday.