Donald Trump is making history Monday as the first former president to stand trial on criminal charges, a watershed moment for American politics, the presidential election and Trump himself.
Trump — the presumptive Republican nominee for president — is required to be present for the entire trial, which could last as long as eight weeks. He’s pleaded not guilty to 34 counts of falsifying business records, a low-level felony punishable by up to four years in prison. The trial kicked off Monday, with lawyers from both sides arguing over some of the more sensational evidence that prosecutors are hoping to use to show why Trump was eager to bury negative stories about himself during the 2016 presidential election.
“This is a persecution like never before. Nobody’s ever seen anything like it,” Trump told reporters in a courthouse hallway, saying the case “should never have been brought” and is “an assault on America.”
The charges relate to Trump’s first run for president. Prosecutors from Manhattan District Attorney Alvin Bragg’s office allege he took part in a scheme with his then-lawyer Michael Cohen and the publisher of the National Enquirer to suppress scandalous stories about him in the run-up to Election Day.
One of those stories involved porn star Stormy Daniels, who alleged she had a sexual encounter with Trump in 2006. Trump has denied the claim, and Cohen paid Daniels $130,000 in October 2016 to keep quiet about the allegation. After he was elected, Trump repaid Cohen in payments recorded as legal fees at his company —documents the DA alleges were falsified to keep the hush money payments secret.
Judge Juan Merchan addressed Trump directly at one point, issuing him standard court warnings that were made more dramatic by Trump’s status as a former president and his frequent public attacks on the judge. “If you disrupt the proceedings we can proceed with the trial in your absence…do you understand?” the judge asked. “I do,” Trump replied.
Merchan also warned Trump that if he fails to show up at court without any explanation, a warrant would be issued for his arrest.
Prosecutors asked the judge to sanction Trump for posts they said violated a gag order barring him from publicly attacking witnesses. Prosecutor Christopher Conroy argued Trump should be fined $3,000 for three social media posts that were critical of Cohen and Daniels. “Not included is another post from this morning,” Conroy said, asking the judge to “remind” Trump that “he is a criminal defendant, and like all criminal defendants he is subject to court supervision.”
Blanche argued that the posts did not violate the gag order, and said Trump was “responding to salacious, repeated, vehement attacks by these witnesses.”
The judge did not immediately issue a ruling.
Cohen told NBC News in a statement afterward that the proposed penalty was not severe enough. “Donald knows the damage his posts inflict on targeted individuals. A $1,000 per post fine will do nothing to curtail future violations,” he said.
The back and forth came after Merchan had heard arguments about the alleged so-called “catch and kill” scheme, the infamous “Access Hollywood” tape and the allegations of sexual assault from various women that came out during the campaign — all while Trump sat at counsel table with little visible reaction.
Prosecutor Joshua Steinglass told the judge they also intend to show jurors some headlines from the Enquirer during the 2016 Republican presidential primary that they contend was part of the overall scheme to boost Trump, including stories trashing then-Trump rivals Ben Carson and Sens. Marco Rubio, R-Fl., and Ted Cruz, R-Texas. Blanche told the judge he considered allowing those headlines in a “sideshow,” but Merchan said he would allow them.
The prosecutor said he also hoped to elicit information about the timing of Trump’s alleged affair with another woman whom the Enquirer paid to keep quiet ahead of the election, former Playboy model Karen McDougal. Steinglass said they didn’t plan to elicit “salacious details,” but did want to note that the timing of the alleged affair was while Melania Trump was pregnant with Trump’s child and the baby was a newborn. He said the information was relevant because it showed why Trump wanted to suppress it ahead of the election.
The judge said he’d allow testimony about the alleged affair, but not the information about Melania Trump.
Steinglass also asked Merchan to reconsider his earlier ruling that the jury not hear the notorious “Access Hollywood” tape, where Trump was caught on a hot mic saying he can grope women without their consent because “when you’re a star, they let you do it. You can do anything.”
Audio from the 2005 hot mic moment became public in October of 2016, and prosecutors contend that’s why Trump was eager to silence Daniels. The judge had previously ruled the DA can reference the tape, but not play it. Steinglass also asked the judge to allow in a snippet from Trump’s deposition in writer E. Jean Carroll’s defamation case against him, where he defended the comment, saying, “historically, that’s true with stars.”
Merchan said he still believes the tape is “prejudicial” and “should not come in” to evidence. “The testimony from the E Jean Carroll deposition should not come in either,” the judge added.
The judge also shot down prosecutors’ suggestion they may try to mention other women who came forward after the “Access Hollywood” tape became public to accuse Trump of assault, calling it “complete hearsay.”
Trump maintains the DA’s case is a fraud and has derided it as being part of a politically motivated “witch hunt” against him, a claim he’s used to galvanize his supporters and rake in millions of dollars in fundraising for his campaign. Bragg, the Manhattan DA, is a Democrat, and Trump has falsely claimed that he’s doing the bidding of President Joe Biden.
The criminal case was the first of four brought against Trump in four different jurisdictions and is the only case definitively set to go to trial before the election.
Because Trump is required to be in court four days a week (the trial does not take place on Wednesdays), his ability to campaign in person is limited to times the court is not in session. But as he did during his previous New York trials, Trump is likely to speak publicly during breaks and after court adjourns for the day.
The start of the trial comes despite numerous last–ditch efforts by Trump to delay it, including by filing appeals accusing Merchan of having a conflict of interest, arguing the judge’s partial gag order against him is “unconstitutional,” and claiming that it’s impossible for him to get a fair trial in Manhattan given the huge amount of pretrial publicity surrounding the case.
The DA’s office countered in a court filing that “given the sheer size of New York County, it is absurd for [Trump] to assert that it will be impossible or even impractical to find a dozen fair and impartial jurors, plus alternates, among more than a million people.”
The jury selection process is expected to take one to two weeks. Two sources with direct knowledge of the situation told NBC News that 6,000 jurors have been called to the Manhattan criminal courts this week — 2,000 more than in a typical week.
Merchan announced a methodical system of whittling down the large jury pool to 12 jurors and six alternates who can be “fair and impartial” about the deeply polarizing Trump.
Eighteen jurors will be put in the jury box at a time and each one in succession will read out loud their answers to a series of 42 questions. The questions include inquiries about what news sources they follow, whether they’ve ever attended any Trump rallies or anti-Trump protests, and whether they’ve ever supported the QAnon movement or antifa.
The form does not ask about party affiliation, political contributions or voting history, but the judge said answers to those questions “may easily be gleaned from the responses to other questions.” After the 42 questions are answered, prosecutors can ask the jurors a series of follow-up questions, and then Trump’s attorneys can ask their own follow-ups.
Merchan warned both sides “not to seek to expand the degree of intrusion beyond what is relevant and has already been approved,” and rejected a request from Trump’s attorneys that jurors be asked whether they “like” the former president.
“Such questions are irrelevant because they do not go to the issue of the prospective juror’s qualifications,” he wrote in an order made public on April 8. “The ultimate issue is whether the prospective juror can ensure us that they will set aside any personal feelings or biases and render a decision that is based on the evidence and the law,” the order said.
In court Monday, the judge told both sides the list of questions is “by far the most exhaustive questionnaire this Court has ever used.” “There will be no doubt how a prospective juror feels about Mr. Trump, the District Attorney, or the Court” when the jurors are done answering, he added.
The trial will have an anonymous jury, meaning the jurors’ identities and addresses will not be made public. The judge said the move was necessary because of “a likelihood of bribery, jury tampering, or of physical injury or harassment of juror(s).”
While the trial is the first criminal trial involving a former president, it’s the fourth trial in New York involving Trump as a defendant since he left office. He was sued twice by writer E. Jean Carroll for sexual abuse and defamation and he and his company were accused of fraud in a civil case brought by New York Attorney General Letitia James. The verdicts against him in the three cases — all of which he is appealing — total about $550 million.
