Trump on Trial

The former president has been confined to a Manhattan courtroom. He faces 34 felony charges after prosecutors accused him of faking business records to conceal a hush-money payment made to a porn star in 2016. He faces three other prosecutions, but this will most likely be the only trial before the November election

By Kenneth Tiven

America’s attention has been drawn to the Donald Trump criminal trial, campus unrest regarding the Palestine-Israel conflict and the presidential campaign for the 2024 election as moths are drawn to a candle’s flame. The ex-president got the bill this week for nine of his social media posts that violated restrictions on commenting about the trial while it is underway. Judge Juan Merchan assessed $9,000 and suggested confinement—jail—might be the next step as Trump uses media to compensate for campaign time lost sitting silently in court four days a week. Pollsters, journalists and voters struggle to understand how the trial and Trump’s behaviour impact the upcoming election and the future of democracy in the USA. E-mail messages on these issues flood mailboxes because organisations share data lists widely. They range from conspiratorial to aspirational. Trump emailed me this week: “I love you” was the subject line. Really? I knew it was just another pitch for money to pay legal fees.

The frustrated former president can only sit voiceless in what he calls a “freezing” courtroom. Lawyers and witnesses describe and disagree on what he said and did to keep salacious news about his behaviour out of the headlines during 2016’s successful campaign. He sits and fidgets, muzzled by court rules—an unusual problem for a man whose life has been about domination in every context.

In week two, Trump’s defence lawyers tried to discredit and downplay extensive testimony from David Pecker, whose scandal sheet weekly, the National Enquirer, actively helped Trump in 2016. Pecker admitted prin­ting negative but false stories about Trump’s opponents while suppressing negative stories about Trump. Pecker admitted in court that he knew it was election fraud to use his media in this manner. Trump stared at Pecker, his former friend and accomplice, often shaking his head in disagreement. In four days of testimony, Pecker never wavered. Trump’s lawyers argued that the Enquirer’s behaviour was typical of the news media.

Trump refused to attend the annual White House Correspondents dinner while in office. This is where comedians mildly roast the chief executive to raise money for scholarships and charities. Presidents usually attend and give a short speech before the comedy part, which is what President Biden did. Regarding campaign coverage, Biden noted that “The New York Times had issued a statement blasting me for ‘actively and effectively avoiding independent journalists’. Hey, if that’s what it takes to get The New York Times to say I’m active and effective, I’m for it.”

Biden, who is 81, referred to Trump as “sleepy Don” for dozing in the courtroom, adding that “the 2024 election is in full swing, and yes, age is an issue. I’m a grown man running against a six-year-old.” The president also ridiculed Trump for describing the Civil War battle at Gettysburg as “interesting, vicious, horrible, and beautiful”. With more than 50,000 estimated casualties, those three days in 1863 were the bloodiest single battle of the conflict. Biden said: “wow!” Trump’s speech was so embarrassing that the statue of Confederate General Robert E Lee surrendered again. For Biden, this dinner was the right venue for disdainful remarks about his prospective opponent come November.

In the weeks before Trump’s state criminal trial started and in anticipation of the federal election trials, retired and respected Federal Appeals court Judge Michael Luttig said: “The Nation is witnessing the determined delegitimization of both its Federal and State judiciaries and the systematic dismantling of its system of justice and Rule of Law by a single man—the former President of the United States.” Trump’s behaviour in the immunity case now appealed to the Supreme Court, is vintage Trump legal strategy—deny reality. Trump vs United States concerns the former president’s claim of absolute immunity from criminal charges for “official acts”—in this case, his attempt to overturn the lawful results of the 2020 presidential election and to stay in office against the will of the voters. 

The Republican idea now is to either kill or negate federal efforts to hold him responsible for several aspects of what happened post-election, especially his role in initiating the ransacking of the US Capitol by his supporters on January 6 to stop the official acceptance of Joe Biden as president on Jan­uary 20. It was the most audacious attack on the US system since the War of 1812 when British forces entered Washington and burned parts of the White House and the Capitol. In three hours of oral arguments, the five Republican male justices seemed less concerned with Trump, but rather more concerned about the future. Would a change in presidential immunity hamstring non-criminal presidents with the risk of frivolous or vindictive prosecutions brought by their successors?

Federal prosecutor Jack Smith had brought the evidence to a Federal Grand Jury, ultimately returning four criminal counts against Trump. But Trump’s lawyers claim that a president cannot face prosecution for official acts unless the House of Representatives has impeached him and the Senate has convicted him. The right-wing justices focused on the risk of vindictive prosecutions, which has been at the heart of Trump’s argument for complete immunity. Such a lack of immunity would destroy the presidency, his lawyers argued, claiming that Trump is simply trying to protect the office. Yet he is the first of 45 presidents to be charged with a crime, and no previous president made any claim of immunity.

Nonetheless, the right-wing justices avoided the present and focused instead on presidents in the past and the future. Conservative retired judge Luttig noted: “The Court and the parties discussed everything, but the specific question presented.” Justice Elena Kagan noted: “The framers did not put an immunity clause into the Constitution. They knew how to; there were immunity clauses in some state constitutions. They didn’t provide immunity to the president.” The liberal justice added, “and, you know—not so surprising—they were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”

The court’s decision will probably take weeks, delaying Trump’s trial for 2020 crimes committed until after the 2024 election. Trump appreciates that because if he wins, he has made clear he will find a way to make federal cases against him go away.

Former Representative Liz Cheney, the Republican who served as vice chair of the House Select Committee to investigate the January 6 attack on the US Capitol, was not pleased. In a New York Times essay, she wrote: “It cannot be that a president of the United States can attempt to steal an election and seize power, but our justice system is incapable of bringing him to trial before the next election four years later.” 

Voters professing to vote again for Trump do not care about the rule of law on which our democracy stands. They don’t like laws enforced equally at any level. Thomas Paine, a journalist and pamphleteer, wrote in Common Sense in 1776, answering the question, “[W]here, say some, is the King of America? “[I]n America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” It helped convince enough of the colonists to revolt against England and win Independence. 

—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels