The Tight Line Trump Has a Judge Walking

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Donald Trump is in his third week on trial in New York, where he faces 34 counts of falsifying business records in the first degree. He’s accused of covering up a $130,000 hush-money payment made in 2016 to the adult-film star Stormy Daniels, who recently testified about her encounters with the former president. I spoke with Atlantic staff writer David A. Graham about where the case stands, Trump’s penchant for violating his gag order, and the bizarre nature of this trial.

First, here are three new stories from The Atlantic:

• The nudes internet
• Trump’s latest abortion position is more radical than it sounds.
• “Listen to what they’re chanting,” Judith Shulevitz writes.

Like an Ordinary Citizen

Stephanie Bai: To start off, let’s lay the groundwork for this trial. Can you briefly explain the case that the prosecutors are trying to make?

David A. Graham: People talk about this as “the hush-money case,” but paying hush money is not itself illegal. What prosecutors are arguing is that Trump paid Stormy Daniels in exchange for her not talking about their alleged sexual relationship, and then falsified the business records to cover up that payment. They say that this constituted election interference because the goal was to keep knowledge of the relationship from voters during the 2016 election.

The prosecution needs to establish that Trump was deeply involved in the creation and the payment of this hush-money agreement, because the defense is trying to say that Trump may not have been aware of the situation. When the prosecution questions people who worked in accounting at the Trump Organization, for example, they are trying to show that Trump was deeply involved in payments, deeply involved in the minutiae of the business—so he obviously would have been aware of a payout as big as $130,000.

Stephanie: What is Trump’s defense team’s counterargument?

David: They don’t deny that this money was paid, but they say that he didn’t falsify the records. They’re also trying to impugn the honesty of some of the witnesses. They mostly seem to be trying to pick apart aspects of the prosecution’s case rather than offering some sort of counternarrative.

Stephanie: If the prosecution isn’t able to successfully prove that Trump was aware of the hush-money agreement, what does that mean for their case?

David: If they can’t prove that Trump was involved, or if Trump’s lawyers can plausibly argue that he did this simply to protect his reputation or to protect his marriage rather than to interfere with the election, then the prosecutors will have a harder time getting the jury to convict.

Stephanie: In defending comments Trump made about the trial, his attorney Todd Blanche said that Trump had a right to complain about the “two systems of justice.” In some ways, it seems like the prosecution is arguing two cases: the hush-money case, and the case for this being a legitimate, fair trial—and not the “political witch hunt” that Trump has called it. Let’s say that Trump ends up getting convicted. Do you think his supporters will accept that outcome?

David: It depends on what that means. There was a poll yesterday saying that most people expect Trump to be convicted, and that includes a plurality of Republicans. So in that sense, they see what’s coming. But I think there’s a widespread sentiment that either he’s being prosecuted by Democrats who are out to get him or that what he did wasn’t wrong. If anything, the trial seems to be solidifying support within his base.

Stephanie: At the core of this case is the extramarital affair Trump allegedly had during his marriage to Melania. Have we heard anything from her during this trial?

David: We have not! Trump has brought a rotating posse with him to court, including not just his lawyers but also his aides, his campaign manager, and his son Eric. Melania has not been there. He complained that he had to be in court on her birthday, which is a little ironic given the alleged events that led to the case.

Stephanie: Headlines and pundits have called this a “historic” and “unprecedented” trial, because it’s the first time a former president has gone to trial for criminal charges. Has this case set any precedents for how a criminal trial of a former president would proceed?

David: This is not a legal precedent, but it’s been powerful to watch Trump have to show up in court when he clearly doesn’t want to be there, listen to testimony he doesn’t want to listen to, sit in this courtroom with a bad HVAC system, and endure it like an ordinary citizen. Even if he argues that he is above the rule of law, we are seeing him sit there like anyone else.

Stephanie: Does the gag order, which has been imposed on Trump and bars him from attacking people involved in the trial, set any sort of precedent for presidential trials going forward?

David: The gag order comes from Trump’s habit of attacking witnesses, the family of prosecutors and judges. I don’t know that you would get one of these as a standard practice with presidents. But each time you have a defendant who has that kind of history or who starts doing that, there’s a good chance of the gag order. Still, Trump has been able to exploit the weirdness of this case and get away with things that other defendants would not have.

Stephanie: Can you say a bit more about how he’s exploited the weirdness of the case?

David: Anytime he gets in trouble for saying something, he says, Look, I’m a politician running for office. I have to be able to make political speeches. It’s unfair for me to be muzzled. That’s something that the judge has had to figure out: How do you write a gag order that allows Trump to be a candidate but protects the witnesses and the sanctity of the case?

To me, it also looks like Trump is daring the judge to jail him—like he concluded that getting sent to jail for a night or a weekend would actually help him politically. So the judge has to decide how much he protects the sanctity of the system by enforcing the gag order versus giving Trump an opportunity to undermine the system in an even bigger way by claiming political persecution.

Stephanie: You wrote earlier this week that some of the best-sourced reporters in the courtroom are saying that Trump largely wants to avoid jail time. Is this a situation where Trump can spin either option in his favor?

David: I think it’s very “heads I win, tails you lose.” If the judge lets him get away with it, he can talk all kinds of trash about the proceeding, and that’s a win for him because he wants to undermine the trial for political reasons. If he gets thrown in jail, I’m sure he would hate it, but it also gives him another political talking point.

Stephanie: It seems like a very tight line for Judge Juan Merchan to walk.

David: It’s really challenging. Every judge Trump has recently come before has had to deal with this in some way or another. They’re trying to figure out: How do we keep him in line without that becoming the story? They want the focus to be on the facts of the case. And that’s really hard to achieve with Trump, because he doesn’t want the focus to be on the facts.

Related:

• The Stormy Daniels testimony spotlights Trump’s misogyny.
• Judge Merchan is out of good options.

Today’s News

1. Secretary of Defense Lloyd J. Austin III said that President Joe Biden’s decision to pause weapons shipments to Israel was related to Israel’s plans to move forward with a large-scale offensive operation in Rafah, a city in southern Gaza.
2. An appeals court in Georgia agreed to review the ruling that allowed Fulton County District Attorney Fani Willis to stay on the election-interference case against Trump after it was revealed that she had a romantic relationship with a prosecutor on her team.
3. The New York Times reported that in a 2012 deposition, Robert F. Kennedy Jr. said that a doctor told him that his memory loss and mental fogginess could be due to a worm in his brain that “ate a portion of it and then died.”

Dispatches

• Work in Progress: No one knows what universities are for, Derek Thompson writes.

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Evening Read

Ozempic or Bust

By Daniel Engber

In the early spring of 2020, Barb Herrera taped a signed note to a wall of her bedroom in Orlando, Florida, just above her pillow. Notice to EMS! it said. No vent! No intubation! She’d heard that hospitals were overflowing, and that doctors were being forced to choose which COVID patients they would try to save and which to abandon. She wanted to spare them the trouble.

Barb was nearly 60 years old, and weighed about 400 pounds. She has type 2 diabetes, chronic kidney disease, and a host of other health concerns. At the start of the pandemic, she figured she was doomed. When she sent her list of passwords to her kids, who all live far away, they couldn’t help but think the same. “I was in an incredibly dark place,” she told me. “I would have died.”

Read the full article.

More From The Atlantic

• Taxpayers are about to subsidize a lot more sports stadiums.
• The absurdity of believing China’s great at protecting kids online

Culture Break

Read. “When Nan Goldin Danced in Low-Life Go-Go Bars in Paterson, N.J.,” a poem by Rosa Alcalá:

“While men fed her tips and she tucked them into her bikini, / a fist hit an eye in a house in Paterson, like a flash going off / in a dark kitchen. And in the corner, a girl stood watching.”

Revisit an iconic photo. American Gothic: Gordon Parks and Ella Watson, a book about Gordon Parks’s widely celebrated 1942 portrait of the government worker Ella Watson.

Play our daily crossword.

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