Former President Donald Trump.
Credit: Reuters Photo
By Timothy L O'Brien
Donald Trump enters a Manhattan courtroom today with a string of firsts in tow: He’s the first US president to be impeached twice; the first president to encourage a mob to storm the Capitol in an attempt to derail an election; the first former president to be indicted by state and federal grand juries on charges ranging from election interference to misappropriation of classified documents; the first former president to be found liable for sexual assault.
Today’s proceedings add to the list. Trump will also become the first former president to stand trial on criminal charges when jury selection begins in a fraud case centered on whether he doctored business records to mask hush money payments to two former lovers in order to keep his candidacy alive during the 2016 presidential election. He has pleaded not guilty to the charges.
Highs and lows, tawdry and troubling, are in abundant supply in this most public of public spectacles. A porn star and a former Playboy Playmate are involved. Several well-known characters from Trump’s business and political orbits are expected to testify, some of them corrupted by their proximity to him. The seediest sector of the tabloid press plays a pivotal role. One of Trump’s alleged affairs occurred just four months after his wife, Melania, gave birth to their son. And the trial will play out in New York, the city that gave rise to the Trump family’s wealth, myths, business and political traction, and debauchery.
There is also the possibility, however remote, of prison time if Trump is found guilty, sentenced and loses his appeals. That will complicate matters for him since he’s running for president again. Complications for Trump rarely slow him down, however. He has the psychopathies, belligerence and compulsion to campaign enthusiastically from a prison cell and nothing in the Constitution would prevent him from doing so. His most ardent voters would undoubtedly continue voting for him.
The unknown, for Trump and the country, is how independent and moderate voters in a handful of swing states will feel about the trial come November. The risk for Trump, of course, is that he needn’t go to prison, or even be found guilty, for the charges and testimony to have an impact on the election. In that regard, he is once again testing America’s civic institutions, the rule of law and our collective values.
Whatever the weaknesses of the New York case against him, and it’s possibly the least consequential and muscular of the myriad federal and state charges he faces, Trump seems well aware that he’s in peril. He continuously ramped up efforts to postpone the trial in recent days, and only seemed to grow more unspooled and histrionic each time the court rejected him. Over the weekend Trump leaned into the flimsiest of his arguments for why he’s being prosecuted.
“On Monday in New York City, I will be forced to sit, fully gagged, I'm not allowed to talk,” he told rallygoers on Saturday. “Can you believe it? They want to take away my constitutional right to talk.”
Trump has peddled this argument in most of his court cases. But his free speech rights don’t extend to encouraging violence or committing crimes. They don’t for any American. He’s also only been gagged outside the courtroom to the extent that he engages in attacks on members of the court or seeks to intimidate potential witnesses and jurors. In the courtroom, he’ll be welcome to testify on his own behalf. In fact, his lawyers have added him to their witness list.
So will Trump, who is complaining that he’s being forced to remain silent during his trial, testify? He has assured reporters that he intends to do so – which means he knows he isn’t being silenced in court, but let’s leave that aside for now. “I’m testifying. I tell the truth,” he said last week. “I mean, all I can do is tell the truth. And the truth is that there’s no case. They have no case.”
For all of that, I suspect Trump won’t testify. He is a habitual liar and fabulist and makes for a very poor witness under oath. My lawyers forced him to acknowledge more than two dozen lies during a deposition in an unsuccessful libel case he once filed against me. A good attorney can keep Trump woefully off balance. A good prosecutor, in a public venue such as a courtroom, can force him to unravel and put him in legal jeopardy.
Trump and his lawyers are undoubtedly wrestling with this, and none of it has anything to do with his free speech. The fact pattern in this case is damning. There’s abundant proof that Trump paid hush money back in 2016 and dissembled about it once it became public, changing his story as it suited him. There’s a tape recording of Trump discussing with one of his lawyers, Michael Cohen, how to buy the rights to a story about one of Trump’s alleged sexual encounters. Cohen assures Trump that he had already spoken to his chief financial officer, Allen Weisselberg, about “how to set the whole thing up with funding.”
Trump’s recent and heated efforts to derail the New York trial suggest there may be other incriminating evidence aired in the courtroom that hasn’t become public yet. He’s given every indication that he’s worried and that he has something to hide. Perhaps not, but that’s what the trial is for. Jurors will ultimately have to decide if the Republican candidate, anxious about his electoral prospects and reeling from disclosure of the Access-Hollywood-grab-them-by-the-genitals tape in 2016, opened his wallet to suppress another scandal and orchestrated a cover-up along the way.
Trump will make every effort to suggest the trial is about something else. He assured rallygoers on Saturday that it’s a sham but that he was “proud to do it for you.” In other words, he’s a martyr and he’s willing to suffer in court on his supporters’ behalf. Self-sacrifice has nothing to do with it. Trump, who has never been one to put others’ well-being ahead of his own, is in court because he may have committed a crime — and he’s being held accountable.