After a pretrial period filled with juvenile tantrums, failed attempts to delay the proceedings, and brutal attacks on prosecutors, the chief justice, and New Yorkers in general, Donald Trump is about to face the men and women who will decide whether he is guilty of 34 crimes. Fillings crime.
As his historic illicit funds trial begins in Manhattan on Monday, it may be expected that the former president will abandon these so far unsuccessful tactics. But don't bet on it.
The opening act of the trial will likely involve the same kind of incivility and invective on the part of the defendant, now redirected into the jury selection process.
Expect Trump to beat the same drum he has for months, attacking anyone within the legal scope — that is, not expressly off limits under Judge Juan M. Merchan's gag orders — and playing martyr's suffering to his followers at the hands of the anti-MAGA elite.
Even as he faces the concrete possibility of conviction and prison sentence – although appeals could take several years – his strategy will remain more political than legal. He hopes to win the presidency and then figure out how to clean up the various train wrecks left in his path.
First of all, this means that Trump and his legal team are expected to object to Merchan's decisions about who will take a seat on the jury.
Like most jurisdictions, Manhattan follows a set of rules that impose a strict strategy on litigants. Each side has 10 golden tickets known as peremptory challenges, which can be used to disqualify a potential juror for any or no reason (as long as it is not unconstitutionally based on race). In addition, each side can argue for an unlimited number of challenges “for the cause.”
The latter is reserved for jurors who litigants say are unfit to serve for any number of reasons. They may have a close relationship with one of the parties or the attorney in the case, or have personal experience with the type of crime alleged or some other conflict or bias. In general, the court must agree that it is unable to carry out the juror's primary responsibility of applying the law fairly to the evidence.
The prosecution and defense will have different strategies. The prosecution will need rational, persuasive people who are able to cooperate collectively and reach consensus. Their ideal candidate may be modeled after a well-educated professional.
On the other hand, the odds of Trump being acquitted are slim, so his team will look for a juror willing to oppose the other 11 jurors no matter how strong their consensus. This means a maverick whose life choices reflect indifference or even hatred towards the public.
Given the defendant Trump's notoriety, the jury will inevitably include people with strong opinions about him. The jury selection process is not aimed at people who have no opinions about the former president, but rather at those who can put aside any personal opinions they have and render a verdict based on the evidence and the law.
This means that potential jurors may introduce themselves and express their views — including negative views about Trump — but when questioned by the judge and prosecutor, assert that they can apply the law and reach a fair verdict.
Even if Trump's side claims a juror is inclined to convict, a judge may side with prosecutors and conclude that they can be trusted to do their job. Trump's lawyers will then have to decide whether to use one of their valuable peremptory challenges. Ultimately, they will have to accept jurors they don't like.
Such losing arguments will serve as greater fuel for Trump's eternal fires of victimhood and injustice, and we can expect him to leverage them as supposed evidence of a deep state plot to oust him. If his complaints cross the lines drawn by Merchan's gag orders, they could lead to an additional set of bitter legal battles. Prosecutors had already moved to hold Trump in contempt for inflammatory social media messages on the eve and at the start of the trial.
Trump's political strategy has always been strained by his legal weakness, which has led him to discredit the judges presiding over his cases, essentially daring them to hold him in contempt of court. Now that the jury is seated to judge his behavior, this strategy will go from questionable to foolish. However, he gives us no reason to expect him to abandon it.
Look for the jury selection process and trial to feature more of Trump's outbursts in court and his verbal tirade on the courtroom steps, straining the patience of everyone involved, especially the judge.
Harry Litman is the host of the “Talking Feds” podcast and the Talking San Diego speaker series. @Harryletman
