On the first day of the first criminal trial of a former US president, I couldn’t resist. The courthouse is 15 minutes from my desk here in New York, so I jumped on the 6 Train and headed out to the scrum of protesters, counterprotesters, journalists, police, and other gawkers in Lafayette Park outside the courthouse.
There was lots – lots – of yelling. Just as I arrived, a guy in a “Gays for Trump, You got a problem with that, Bitch!” T-shirt was at the center of a smartphone scrum screaming at a woman holding a “Trump is the Definition of Depravity” sign that she was a “pedophile.”
Before long, content creators from both sides of the national divide were on the scene, livestreaming and shouting at each other about Hunter Biden, about inflation, about child labor, about immigration. Even Triumph the Comic Insult Dog barked into the mix, asking one of several Proud Boys stalking the scene in wraparound shades: “If Trump is convicted, do you think he’ll be sentenced to four years … in the White House?”
The only people not screaming, as I recall, were four elderly Chinese-American ladies in huge sunglasses, sitting on a bench under a leafless sweetgum tree, holding hand-painted signs that read: “Kangaroo Court, Banana Republic.”
It was, in all, the usual performative mayhem about the usual subjects. But the one thing that almost no one was actually yelling about was the thing that was going on inside the building 100 feet away: the trial itself.
All that circus, and hardly a word about the elephant in the ring.
But isn’t that how a lot of us talk about Trump’s trials and titillations these days? We argue about the politics rather than look at the merits. And that’s a bad thing.
For Trump, the political cage matches keep the focus right where he wants it: on the narrative that he, as a popular threat to a corrupt establishment, is the victim of a political witch hunt. That the ruling party is using the justice system to silence a political rival. That those ladies with the big sunglasses under the sweetgum tree are right.
On the other side, people talk about the long-coming legal downfall of a demagogue seen as a threat to the Republic itself. The Capone of politics nabbed on his own kind 0f tax rap.
“People know what verdict they want in this case,” says Richard Klein, a professor of law at Touro Law School and a longtime trial criminal defense lawyer. “But few people are focusing on DA Bragg’s case against Trump. They're focusing on all the noise around it.”
To review, briefly. Manhattan DA Alvin Bragg alleges that Trump falsified business records to conceal a payment that was made, in the fall of 2016, to a porn star who says she and Trump had a fling.
“Hush money” is bad, but that’s not actually what the trial is about. Paying someone to keep quiet isn’t necessarily a crime, and fiddling with business records in New York isn’t a felony.
Bragg’s case elevates the charges by arguing that this book-cooking was done with the intention of committing other felonious infractions – including, it seems, a conspiracy to influence the outcome of the 2016 election and commit tax fraud.
To prove this intent, Bragg will bring various witnesses, including Trump’s former lawyer and fixer-in-chief Michael Cohen, who made the payments, as well their recipient, the actress known as “Stormy Daniels.”
Legal scholars like Klein say Bragg’s approach is something of a high-wire act. He is linking dozens of lower-level crimes – some of which Trump appears to have admitted publicly – to harder-to-prove felonious ones, and then asking a jury to decide that Trump did all of this to sway an upcoming election rather than, say, simply to save his marriage or protect his kids from scandal.
The key witnesses, moreover, aren’t exactly folks with an unblemished reputation for truthtelling. Cohen has already admitted to lying under oath previously.
How much does this matter? If Bragg fails to convince the jury, Trump will be vindicated – look, he’ll say, these kangaroo court prosecutors came at me and 12 very good people of New York saw through it. This will color the politics of the other three cases he faces.
If Trump is convicted, of course, it may not move the needle for the 35% of “you got a problem with that bitch!”Americans who are unwaveringly fanatically loyal to him.
But about half of Americans say if Trump is convicted he should not be president again. That includes 14% of Republicans and, perhaps more importantly, a third of independents who say a guilty verdict would sway their vote. In a tight election – and this one will be tight – that could certainly be the difference.
As I went to file this, news broke that the jury has been set for the trial. And so we’re off. I may not be able to resist heading down to Lafayette square for some good mayhem again in the coming weeks – but as a society it’s a mistake to let that political circus distract us from the real drama in the courtroom itself.