This week, the jury in Donald Trump’s hush money and election interference trial will begin deliberations. They have the unenviable task of deciding the unprecedented question of whether a former president of the United States should be found guilty in a criminal court.
Their verdict will not only determine Trump’s fate, but it may have a material impact on the outcome of the 2024 presidential contest. While jurors are supposed to consider only evidence presented to them during the trial, one can only imagine that they feel the weight of the historic responsibility that has been thrust upon them.
While we can speculate about what the jury will decide, it’s important to consider what will happen after the verdict becomes public. Trump and his allies have already laid the groundwork to denounce a guilty verdict as the product of a political prosecution in a kangaroo court. Trump calls it a “Biden show trial.”
The former president will almost certainly appeal a guilty verdict, pointing, among other things, to the allegedly prejudicial effect of the admission of evidence about his sexual encounter with Stormy Daniels. The appellate process would also give the former president more fodder for his claim that the New York prosecution constituted election interference.
And, if he is found not guilty or if there is a hung jury, Trump will no doubt use that result as an accelerant in his presidential campaign. The New York Times quotes Alyssa Farah Griffin, Trump’s former White House communications director, as saying, “An acquittal or a hung jury is just absolute gold for Trump. And it will resonate with a lot of people.”
Some experts think the evidence against Trump is “middling—not overwhelming, not patently deficient, but somewhere toward the lower end of that spectrum.” As a result, the chances of a hung jury “are far higher than in a normal case.”
Former federal and state prosecutor Elie Honig is one who foresees that result and urges people to “consider the difficulty of getting any 12 people to agree on anything,” especially when the stakes are “liberty or prison.”
I agree. The case against Trump is hardly a slam dunk.
And whatever the verdict, it looks like he has a ready-made strategy for the day after the jury renders its verdict. At the same time, there is little evidence that Trump’s political opponents really know what they will do when the trial concludes.
As we await the jury’s deliberations, commentators highlight the evidence they consider crucial to the verdict. Some point to Stormy Daniels’s testimony. As CNN noted, she described “in vivid details … certain things that were entirely taboo, that we wouldn’t really expect to hear in a courtroom….”
CNN says that her testimony was “not necessarily directly tied to the allegations or the charges in this case, but hearing her describe this alleged night with Trump in the hotel room, down to the anecdote of her smacking him on the butt with a magazine and his reaction in court, audibly cursing at that moment, was definitely a memory.”
Then there was the testimony of Michael Cohen, who said that Trump knew exactly the purpose of the payments Trump made. Cohen, a convicted liar and perjurer, was hardly anyone’s idea of a perfect witness. Still, his testimony may play a key role when the jury considers whether Trump falsified business records and to commit or conceal another crime.
“Underscoring his importance,” USA Today says, “the defense’s cross-examination of Cohen lasted about eight hours, much longer than the entire case put on by the defense.” While Todd Blanche, Trump’s lead defense lawyer, “didn’t visibly rattle Cohen or get him to display his infamously volatile temper…, [he] exposed the prosecution’s key weakness: that they are relying on the testimony of a vengeful former employee with a major ax to grind against his former boss.”
While much less sensational than Daniels’ and Cohen’s appearances as witnesses, the prosecution hopes that the jury will, as NBC News reports, focus on the extensive paper trail in the case. They offered evidence that “34 false entries were made in New York business records to conceal the initial covert $130,000 payment.”
Prosecutors say the “catch and kill” scheme involved 11 falsified invoices, 12 falsified general ledger entries, and 11 checks falsely recording hush money repayments to Cohen as a “retainer.” Those checks were issued from the Trump Revocable Trust and his personal bank account “for a phony purpose.”
“Each check was processed by the Trump Organization and illegally disguised as a payment for legal services rendered pursuant to a non-existent retainer agreement.”
While the jury considers this evidence, most Americans are going about their business without paying much attention to Trump’s trial. One poll asked respondents how closely they were following Trump’s hush money case.
“A majority in this poll—55 percent—said they were not following it much or at all, versus 45 who reported paying some or a lot of attention to the trial.”
But when the verdict is announced, that is likely to change. It would be surprising if what the jury decides escapes notice even among those who now are not following the trial closely.
And, if the general public fairly approximates the views of the people who will decide Trump’s fate, the news is not good for the prosecution.
A PBS NewsHour/NPR/Marist poll found that only “47 percent of Americans think Trump has done something illegal, including 86 percent of Democrats and 42 percent of independents. Meanwhile, another 30 percent say he has acted unethically, but not illegally. And 21 percent say Trump has done nothing wrong.”
Moreover, as the trial has gone on, the belief that Trump will be convicted has declined. A YouGov poll found that “[a]round 39 percent of Democrats said in late April that Trump would be convicted. Now, the number stands at 34 percent.”
“With independents,” YouGov reports, “21 percent believed in the conviction late last month; it is at 17 percent” in the new survey. With GOP voters, that belief dropped from 17 percent to 14 percent.”
Overall, “22 percent of Americans think Trump will be convicted in the Manhattan case.”
Whatever the verdict, it seems like the New York trial has been another instance in which Trump has outgunned his critics in the war to shape public opinion. While he has consistently broadcast the message that his trial has been unfair, with a few exceptions, the public has heard little to defend its fairness and integrity.
Unlike Trump’s simple, consistent, and visceral criticism of his trial, the few who have spoken out to defend it offer a more complex argument. The case made by Mark C. Zauderer in a Boston Globe editorial is typical.
As Zauderer put it, “No court can ensure that those who serve as jurors in a high-profile case—especially one involving a former president of the United States—can affirm they have no views about the matter; to try to achieve that would be a fool’s errand. But New York’s respect for the jury system and the processes for ensuring a fair trial are second to none. And Donald Trump, like every citizen who faces criminal accusations, is enjoying the benefits of this system.”
While Zauderer may be right, America will pay a high price for the stark difference in the messaging wars starting the day the jury renders its verdict and lasting for a long time thereafter.
