Trump's Trials - The first criminal trial of a former president begins on Monday

Episode Date: April 13, 2024

This week on Trump's Trials, host Scott Detrow and Domenico Montanaro are joined by lawyer and former ambassador Norm Eisen.On Monday, former President Donald Trump will enter a Manhattan courtroom as a defendant in a criminal trial. This will be the first time in American history a former president has faced criminal prosecution. Trump is charged with 34 counts related to falsifying businesses records. The prosecutor intends to connect alleged hush money payments made to adult film actress Stormy Daniels to interference in the 2016 election. Topics include: - Election connection to hush money case - Jury questionnaire - Key players Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

We are less than 48 hours away from the start of the first criminal trial of a former president. From NPR, this is Trump's Trials, I'm Scott Detro. This is a persecution. He actually just stormed out of the courtroom. Innocent till proven guilty in a court of law. On Monday, April 15th, Donald Trump will enter a Manhattan courtroom for his first criminal trial. All of his last-ditch efforts to have the case further delayed have failed.

So here are the stakes. Trump is facing 34 felony counts of falsifying business records. He's accused of paying off adult film star Stormy Daniels and others to hide alleged affairs from before he held political office. This all happened in the final weeks of the 2016 presidential campaign. And hanging over all of it, of course, is the 2024 presidential campaign. The fact that Trump is a candidate in a race expected to be decided on razor thin margins in just a handful of states.

So what happens in this courtroom will matter for Trump and also will matter for the country. The trial is expected to last six weeks and instead of campaigning, we expect Trump to spend just about every one of those days in a courtroom. Each count Trump is facing carries a maximum sentence of four years and if convicted, it will be up to the judge to decide if Trump serves any prison time at all. As always, I am joined by senior political editor and correspondent Domenico Montanaro. Hey, Domenico. Domenico Montanaro Hey.

Adam Chapnick There's a lot to get into. We will get into as much as we can in this preview episode. But let's start here, remind us of some of the key witnesses that we're going to be hearing from over the next few weeks. Domenico Montanaro Well, like you mentioned, first off, there's Stormy Daniels, whose real name is Stephanie Clifford. She's an adult film star who Trump is accused of having a sexual relationship with and paying off. Then there's Karen McDougal, a former Playboy model who also was allegedly paid off in 2016 for her story about a sexual relationship with Trump but would never run, aka a catch-and-kill scheme between Trump and the National Enquirer. There's Michael

Cohen, a lawyer who was close to Trump and seen for a long time as his fixer. He claims he's the one who paid off Daniels and, in turn, who Trump paid back once he was president. In 2018, Cohen pleaded guilty to a handful of financial-related crimes, including making false statements, and went to prison. He testified against Trump in the New York civil fraud case earlier this year, but the Trump team expect them to cast doubt again on his testimony, given that he did go to prison in part for lying to Congress.

And Allen Weisselberg, former chief financial officer for the Trump Organization, he's pleaded guilty to nearly 20 charges related to work with the Trump Organization and served a couple months in prison. And there's also a host of other political players who people might recognize. Yeah. So we're going to talk more about these key witnesses. We're going to talk about the key facts of the case. We're going to talk about jury selection, which is the first thing that happens in a

political case like this. That is the key step. We're going to talk about it with you as well as Norm Eisen. He was part of the team that brought the first impeachment articles against Trump, and he's written a new book previewing this upcoming criminal trial in New York. So stick around, we'll preview it all. Organic Valley, a co-op of small organic family farms. Farmer Tyler Webb shares why caring for his land has always been a priority. I'd like to contribute to my community an array of ecosystem services beyond just milk. Building topsoil and holding on to water and supporting wildlife,

to build that resilience that will support, you know, generations to come. Discover organic valley dairy at ov.coop slash ethically sourced. Black perspectives haven't always been centered in the telling of America's story. Now we're taking center stage, introducing NPR's Black Stories, Black Truths, a collection of black-led stories from NPR's podcasts. Search NPR Black Stories, Black Truths wherever you get your podcasts. Joining us now is Norm Eisen. He's the former ambassador to the Czech Republic and served as a special counsel to the House

Judiciary Committee during the first Trump impeachment trial. He has a new book out called Trying Trump, a guide to his first election interference criminal trial. Norm Eisen is obviously a busy guy with a trial about to start and we caught him in a pretty echoey place. So I'll just note that. Hey, Norm. Thanks for having me, Scott. And Norm, before we get to you, Domenico, I just want to start with you, and I just want to start with taking a step back. The US has had 46 presidents over the course of 235 years. This is the first time any one of them has been criminally prosecuted, and this is also somebody who could be president again. Just how significant is this moment?

I mean, you know, this is a time in this country politically when people create their own realities. And I think that's the most difficult thing about trying to report on a lot of facts of these kinds of cases, because, you know, no matter what the facts are, you're going to have half the population that says, you know, don't buy it, don't believe it, especially on the Trump side, because Trump has really convinced his followers, his millions of followers, that there's a deep state conspiracy. People are out to get him and they believe this. You know, there was a time when probably you wouldn't have, um, you know, people

just believing whatever their preferred candidate tells them. But this is a guy who has really won over a significant portion of the country and why we're in a place where seven months from the presidential election, despite these four criminal trials against former president Trump, that we are likely headed for a very close election again. Nat. And Norm, I think that kind of brings us to the title of the book and the way that you and others are thinking about this case.

You're saying that this is not necessarily a hush money case. This is an election interference case. Can you explain why you're framing this case this way? The framing, although I think it's correct, comes from DA Bragg and increasingly from Judge Juan Mershon, who will preside over the trial. In the case summary that the judge will read to every prospective juror, he begins that case summary by saying that this is a criminal trial

about the alleged cover-up of an attempt to prove that the jury By saying that this is a criminal trial about the alleged cover-up of an attempt to influence an election and the reason these 34 examples of document falsification The Donald Trump is being tried for, our felonies, is because D.A. Bragg alleges he'll have to prove it to the jury.

That these documents were falsified to cover up hush money payments that were made for the purpose of influencing a campaign in violation of federal campaign finance law and New York state election law. So if this is right, the stakes are much greater here than mere hush money or a sex scandal. It really is a democracy case where in an extremely close election, withholding this information from the voters might have made all the difference in the world. You know, and I do just want to push back on that one more time and kind of think about it because Domenico, you and I have talked a lot about the fact that like a

lot of the key moments in this case did happen right around the same time, shortly after the Access Hollywood tape. But as Domenico, you and I have talked about, there were so many allegations flying around Trump in this moment. Would these extramarital affairs have made a difference? I don't know. I don't think it's a clear cut case because there was so much stuff out there in that moment. Yeah. I don't think we know exactly what could have changed the outcome of the 2016 election or if it could have

in this case, considering how much other stuff was out there and how many other, you know, unprecedented quote unquote things that happened with Trump. So I'm not sure that we know that that's the case. I've heard from some people who feel like this would have been pile on considering the Access Hollywood tape that had come out, that this might have made some difference. But remember, there were some two dozen women almost who accused Trump of sexual misconduct, who came out on the record with their names attached to these things. And that didn't seem to budge the people who voted for him. Nat. Yeah. Regardless, there were these alleged payments made. There was this alleged plan to

cover them up as legal payments to Michael Cohen. That's the heart of this case. Norm, what is the best evidence that the prosecution has? Norm Cotterly The most powerful evidence that the prosecution will present is the mosaic of a long running catch and kill scheme that the prosecution will contend, I think with a lot of documentary testimonial and other other evidentiary proof shows that Donald Trump, National Enquirer, and Michael Cohen agreed well before the election that they were going to catch and kill negative stories about Donald Trump for the purpose of helping him electorally. If you look at other times when this has been prosecuted you don't have that kind of

express agreement to allegedly violate federal and state campaign finance law. And then the execution of that initial catch and kill scheme up to and including writing the checks to repay Michael Cohen's many signed by Donald Trump that are part of a package of documents that falsely call this Legal fees this was not legal fees These were monies that were paid allegedly to cover up election influence in the words of the judge election interference as I put it in the title of

My new book. Yeah. What do you think the most challenging part of the case is for the prosecution? Because I think, you know, there's a pretty sound argument that sometimes white collar crime, things involving business records, can be tricky cases to make, tricky cases to put the pieces together and connect for a jury. It's a two-edged sword, that same proof of intent to interfere with the election from the earliest meetings that Michael Cohen, National Enquirer, and Donald Trump had well before the election and then running through the allegedly illicit payments and then into

the fake documentation. The other edge of that sword is, can you establish intent? You've got to have the intent to interfere with the election, to influence the election, to violate campaign finance law federally, to violate state election law. Donald Trump is not going to testify. And if he does testify, he's surely going to deny any wrong intent. So you need to infer intent from David Pecker and Michael Cohen testifying about those early meetings and what Donald Trump said, agreeing that this would be done to affect the election. I think this is the one case, given that it may be the only trial that Trump faces before

the election that is gonna get some heightened scrutiny or heightened attention because with all of these other cases and all of these other things that Trump is accused of, it's really remarkable that this is the one that winds up getting pushed to this point. And if he's convicted, is that something he can just push off to say, oh, a jury in New York wouldn't be fair to me, which is what he's been trying to say. But I think there's an open question with a lot of people, a lot of independents, especially as the details of this come out, that they're not looking at this the same way that Republican supporters of Trump do.

Right, because again, there are two effective juries here, right? There's the jury that matters for the criminal case, which is clearly incredibly important here, but there's the jury of American voters who are going to be absorbing this or not absorbing this and thinking about it. Which Trump is acutely aware of, which is why he continues to come out at every court hearing and makes political statements about it. Nat. And, Norm, one of the most useful things in your book was the day-by-day timeline of all of this because, you know, a lot of these facts have been known for a long time. A lot

of these facts were major national headlines. Domenico and I were part of the live coverage that NPR and other outlets did of Michael Cohen's testimony when he laid all of this out before the House. And I will be honest with you, I was racking my brain trying to figure out was that 2018? Was that 2019? It feels like it was 2018, but the Democrats didn't take control of 2019. Like it all mushes together. So I think like politically, I could see both sides of this. This will remind people of things that many of us have just buried or forgotten about. But at the same time, a lot of the rough stuff, this is known to the voters. But Norm, with you, we're talking about what's happening in the courtroom. And I know that you're kind of,

you're laying out the case for the prosecution here. But what do you think the defense is best laying through this is? I'm curious what you think about that. The defense chose not to make one of their best arguments because of the cost of doing that. And that's the reliance on counsel. Michael Cohen was a lawyer, other lawyers who are involved. Campaign finance law is very complicated. New York election law the same.

And I just relied on the lawyers so I couldn't form criminal intent. That would have been the argument I would have led. The cost of doing that would have been to weigh the attorney-client privilege and it would have opened up Trump's written exchanges with all of his lawyers. I suspect there's some things in those documents that the former president may not want the world to see. Still, they are left. Even beyond the House testimony and memoirs written

by some of these lawyers. Michael Collin is one lawyer, but he's not the only lawyer who was involved in this. So that's the big stakes. That's kind of the roadmap of the next six weeks. I want to spend a few minutes talking about what happens next week, what happens starting on Monday. And that's the critically important step of finding a jury. I will say here that the other podcast I host, Consider This, on Sunday, we're going to have an episode all about jury selection, talking to some people who have been lawyers in other high profile cases where the case was a national news story, where the people

in the case were well known, where it was really hard to find a jury and that was a key part of it. So check out the Consider This feed for that. But, uh, Domenico, you know, it's interesting, we talk about polarization and how you can kind of suss out people's political opinions in a lot of different ways here. I'm flipping through the juror questionnaire. Mm-hmm. As am I. Yeah. And there's some stuff here, uh, you know, I'll point out question 11. Do you, do you listen to podcasts? If so, which ones? Maybe Trump's trials will come up. But, um, there's, it, it's interesting, a lot of the things here

are kind of basic questions that you would probably expect in most cases. Have you been a victim of a crime? Do you have a relative or close friend having a pending criminal case? But then there's questions like, have you ever attended a rally for Donald Trump? Have you attended a campaign event?

Do you follow any anti-Trump group on social media? There's a lot here that I think can kind of give you a sense of where people stand politically. Yeah. And I remember being in court that day when this trial was actually set and part of what they started talking about at the end was the jury selection questionnaire. And they had this extended back and forth on exactly which ones to include or not because the prosecution wanted to have a whole lot more specific talk radio programs and podcasts, for example, on the right that they wanted to be able to identify people with. So this is very tricky. And the judge at that point told

them all that just because somebody is registered as a Democrat or registered as a Republican, doesn't mean that they can't take that personal political affiliation hat off and be able to then be a fair-minded independent juror. And that's what I think has gotten lost a lot in the last 20 years or so is that just because you identify a certain way politically doesn't mean you can't be objective about the facts. And unfortunately, a lot more people now are putting that identity as like their t-shirt and the thing that they wear and anything that goes against that,

it's they don't want to hear about. So it's really interesting and I'm gonna be interested to hear about the deliberations after they take place. If you were one of the lawyers kind of like trying to strike jurors, like what do you think...I mean, because like the political leanings is a key element here, but what else do you think the two sides are gonna be trying to sort through? Because it feels like who the jury is is such a critical thing on this particular case. The thing that is going to matter now is when you meet the jurors in court, you get the salient characteristics of the jury.

Trump is going to be looking for a jury pool that mirrors his support base. His objective is to put one person on that jury who will support him no matter what, even up to and including the point of jury nullification. That's the phenomenon when a juror completely violates their oath, ignores the facts on the law, and makes up their mind for extraneous factors. It just takes one to hang a jury. I think that's what Trump is doing with his whole delay strategy. He's trying to constantly elucidate everything he's trying, but he's talking to his voters

and he's talking to the jury poll, hey, I'm being mistreated. Conversely, I think the prosecution is going to be looking for people who are not like Trump's base. They want well-educated people. They're going to want people with college degrees or higher, college degrees or higher, professionals, people in supervisory and managerial roles, those who will follow the law and the evidence because the law and the evidence is very powerful here. You do have to make that tend inference. You want jurors who are sophisticated enough to say, well, even though Donald Trump himself didn't testify, there was no law and order style or Perry Mason moment of breaking him down on the stand, still the evidence is sufficient.

I can draw the differences. You know, Norm, the last thing I want to ask you is, you know firsthand, because again, you were part of that first impeachment trial against Trump, you know firsthand how many times in the political sphere, in the legal sphere, in the world of impeachment, counts for both, he has been accused of very serious things and he's been able in one way or another to escape at the very last minute and make it part of the Trump success story of of kind of avoiding the odds in a dramatic way because I'm a former reality's TV star type type type narrative that you know that his supporters really buy into how

how how anxious are you in this trial about that happening again what are the stakes when it comes to that particular thing we've seen time and time again with him? I'm looking more to the end of the trial. If he's convicted, that will have an enormous ripple effect, not just legally, but politically across the country. I think it will pop his bubble of impunity. I think it will have a cataclysmic, according to the polls, I wrote a piece for the Times

about this, conviction has a cataclysmic effect on his public standing. And this is the most serious document falsification case New York has ever seen. So that will really pop the invulnerability illusion. And I think it's going to have a profound effect on how the public sees him if it comes to pass. Domenico flip side, an acquittal could be an enormous boost for Donald Trump, the presidential candidate. Oh, definitely. I mean, even when he was acquitted in the Senate trial of his impeachment, he held up essentially that ruling saying, I'm acquitted, I'm exonerated. Those aren't quite the same things, obviously. But he would do the same thing again.

That would be a huge boon to him. It would certainly lend to the idea that he's a martyr who's being just unfairly targeted. But it's worth reminding people that he's already facing some pretty stiff penalties and he's struggling to have to pay back the state of New York, for example. He's having to use campaign funds to have to go and pay for some of those legal fees and it's really hampering him. We're seeing, for example, Joe Biden running five times the number of ads in the past month since Super Tuesday and his team is really struggling. They're banking again on the strength of his personality, which is a strong one

and he did this in 2016 as well, But can that be the same case this time around? He's got a lot more that's sort of weighing on him, including having already been president and people's views of him being pretty calcified. Nat. That's senior political editor and correspondent, Domenico Montanaro. Thank you, Domenico. Domenico. You're welcome. Nat. Also joined by Norm Eisen, former ambassador to the Czech Republic, served on special council on the first Trump impeachment trial, and has a new book out called Trying Trump, a guide to his first election interference criminal trial.

Norm, thanks a lot. Thanks for having me. And stick with us. Each week we will be having big picture analysis of what mattered in the courtroom, and we will have developments throughout the week as this trial gets started. We'll be back next week with another episode of Trump's Trials. Thanks to our supporters who hear the show sponsor free. If that is not you, still could be. You could sign up at plus.npr.org or subscribe on our show page and Apple podcasts.

This show is produced by Tyler Bartleman, edited by Adam Rainey, Krishnadev Kalamar, and Steve Drummond. Our executive producers are Beth Donovan and Sammy Yenigan. Eric Maripotti is NPR's vice president of news programming. I'm Scott Detro. Thanks for listening to Trump's Trials from NPR. This is my voice. I can tell you a lot about me. And I'm not changing it for anyone. In NPR's Black Stories, Black Truths, you'll find a collection of NPR episodes centered on Black experiences. Search NPR Black Stories, Black Truths, wherever you get your podcasts. What does it mean to be black in America?

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