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Saturday Q&A

We got many, many questions about Donald Trump's trial and legal situation this week, so we're going to give the Q&A over to that.

Also, this week's headline theme was apparently the most difficult one we've ever put together; we've only gotten a very small number of correct responses. We'll tell you that other words we considered for headlines include "saw," "mark" and "jockey." We also considered "Johnny," but decided that was not fair because the pattern is, for lack of a better description, X-Y, not Y-X.

Current Events: Trump Legal

M.J. in Granger, IN, asks: I am a little confused as to the underlying felony charge of election interference that pushed the falsified business records to a felony instead of misdemeanor. I am not sure why it is against the law to try to hide information that I think is damaging to me if I am a candidate.

For example, I am running for Congress, I have a picture of me in a dress for a party, I plead with my fraternity brothers to not publish that picture on a social media, and as a payment, I have to take them to dinner and beers. This example is not $130K and of course I would not deduct it as entertainment expenses, but isn't the concept the same? In this case, doesn't Donald Trump have the right to try by any legal means, and paying off somebody seems to be legal, to suppress negative information?

(V) & (Z) answer: It is permissible for a campaign to try to bury negative information about its candidate. And if Trump had just hired Stormy Daniels as a "campaign consultant" and paid her $130,000 in salary, then he would not be here right now.

However, in 2016, he was still fresh off the "grab 'em by the pu**y" tape, and he worried that news of multiple extramarital affairs might undermine his candidacy. So as to keep maximal distance between his campaign and Daniels, he instructed Michael Cohen to make the payoff to Daniels.

At that moment, Cohen violated campaign finance laws because he made a campaign contribution far in excess of federal limits (this is something Cohen has already pleaded guilty to and served time for). It does not matter that Trump promised to pay Cohen back, and ultimately did so. If this sort of arrangement was allowed, it would open the door for campaigns to hide any and all questionable or fraudulent expenses by simply having a third-party outsider pay the money, and then reimbursing them. In that way, "payment to the Donald J. Trump new swimming pool fund" could be converted, for bookkeeping purposes, into "payment to campaign lawyer Michael Cohen." All they would have to do is have Cohen make the actual payment to the swimming pool contractor, and then Trump could have a new pool on the campaign's dime.

All of this is a pretty clear violation of both federal and state law. The Federal Election Campaign Act specifically forbids a candidate from asking an outsider to make payments on behalf of the campaign. And New York's law is written even more broadly, prohibiting any conspiracy meant "to promote or prevent the election of any person to a public office by unlawful means."

And then, in addition to (and in continuation of) the initial criminal act, Trump put the payment on the books as a legal expense. Not only was that an effort to hide the fact that it was actually an illegal campaign expense, it also meant that Trump was defrauding the state of New York, since a hush-money payment (which is NOT tax-deductible) became a legal-services payment (which is). Once Trump had committed two, connected crimes (the violations of election law plus the phony bookkeeping), then it rose to the level of a felony.

Note that Trump is innocent until proven guilty; everything we write here holds true only if Manhattan DA Alvin Bragg is able to prove the fact patter he alleges in his indictment.

R.M.S. in Lebanon, CT, asks: Why does the U.S. press keep calling the New York prosecution of Donald Trump a "hush money" case? Paying hush money itself is not a crime and I am sure there have been many politicians who have had extramarital affairs and paid their partners off.

He is charged with falsifying business records, which is a form of financial fraud. Calling this a financial fraud trial would be more accurate and speak to the seriousness of the charges. I think the American public is not taking this case seriously because it is being framed as a hush money case, which seems petty and unnecessary.

(V) & (Z) answer: You're right that "financial fraud" is more accurate, or at least does a better job of getting at the seriousness of the charges.

That said, when writing about these things, economy of language is important. Whether it's us, or The New York Times or anyone else, it's necessary to have a quick descriptor that is unambiguous in what it is referring to. The problem with "Trump fraud trial" or "Trump financial fraud trial" is that he already had another one of those, courtesy of Letitia James, and so it's not clear which trial is being referenced—the previous one, or the current one. "Hush-money case," by contrast, could only refer to one trial, and does still carry the connotation that something shady might have taken place.

J.A. in South Salem, NY, asks: As I recall, jurors aren't supposed to discuss the case among themselves until after they are given the case for consideration. At that point, can the alternate jurors participate in the discussion? If they can't, do they sit and listen and watch the voting? Or are they barred from the jury room?

How do alternates graduate to regular jurors? I assume that a juror can be dismissed because of illness, injury, speaking to the press, etc., and then would be replaced by an alternate. Do the alternates sit in the jury box with the jurors during the trial?

Once the case goes to the jury room, is the jury then set, even if a juror is then unable to serve or disqualified from serving? If alternates do not participate from the start, I imagine that bringing in an alternate mid-deliberations could change the dynamics in the jury room.

(V) & (Z) answer: We're going to answer your questions out of order. To start, note that different jurisdictions have different ways of doing things. In many places, alternate jurors aren't chosen (or aren't told of their alternate status) until AFTER the courtroom proceedings have concluded. The purpose is to encourage all jurors to pay close attention, since any of them might end up as "real" jurors. Obviously, New York doesn't do it this way.

As to dismissing a juror, New York law lays out several grounds for doing so:

  1. If a juror becomes ill or incapacitated.
  2. If a juror becomes unable to serve (say, they have an ill relative who needs to be cared for).
  3. If the Court learns of additional information that indicate a juror is "grossly unqualified" to serve.
  4. If a juror does not show up to court.
  5. If a juror engages in "misconduct of a substantial nature" that is not enough to trigger a mistrial, but is enough to justify their removal.

That last one leaves a fair bit of leeway for the judge. For example, if one juror refuses to deliberate, and says in the jury room they will never, ever vote to convict a great hero like Donald Trump, then they could be removed by virtue of having lied in their voir dire (every juror said they could be fair and impartial) or having violated their oath as a juror.

And the alternates will sit in the jury box with the regular jurors. However, they cannot participate in deliberations once the case reaches that stage, and they cannot be in the room. It is true that suddenly introducing an alternate into the proceedings could change the dynamic, but that's generally seen as a feature, not a bug.

D.E. in Lancaster, PA, asks: Out of curiosity, let's imagine that you both were in the jury pool for Trump's Election Interference (Hush Money) trial. During voir dire, you were asked Question #34: "Do you have any strong opinions or firmly held beliefs about former President Donald Trump, or the fact that he is a current candidate for president that would interfere with your ability to be a fair and impartial juror?" How would answer? Bonus points for if you think you would get accepted to be on the jury or not.

For what it's worth, here would be my answer: "I will be brutally honest and say I detest Donald Trump. But I will also say that I have a firmly held belief that all men are innocent until proven guilty, even the ones I dislike. As a juror, it is my solemn obligation to assume the defendant is innocent. That it is the Prosecution's duty to prove his guilt and it is mine to consider any reasonable doubt put forth by the defendant's lawyers. While I doubt Trump would afford me the same consideration if the tables were reversed, I will let the facts as presented speak for themselves. I for one am glad we live in a society where being disagreeable and simply being a nasty person is not a crime and will do more than give lip service to our Constitution and laws."

Of course, Trump's lawyers would move for a preemptory challenge faster than greased lightening and I would get death stares from Don Snoreleone as I exited the jury box. I would smile the whole way out knowing that Ranta Claus probably just kissed goodbye one of his better opportunities to stay out of jail because I really do believe that even Treasonweasel is innocent until proven guilty.

(V) & (Z) answer: It's not especially workable to answer this as "we", so we'll just tell you how (Z) would answer:

I am a professional historian and academic, and I write a daily blog on politics. It is possible, and maybe even likely, that I know more about Trump's legal problems than anyone in the room, save Trump himself. I have written literally millions of words about him, most of them critical, and have described him at various times as "corrupt," "a crook," "a liar," "guilty of sexual assault," "a racist" and "a fascist/wannabe fascist/proto-fascist."

That said, I believe that everyone is innocent until proven guilty, including the former president. Further, it is part of the ethics of my profession that you must follow the evidence, even if you don't like where it takes you. For these reasons, I do believe I would be able to be a fair and impartial juror. As an added bonus, there is no amount of attempted intimidation that would cause me to get cold feet and to ask off the jury. People who might try that can fu** right off.

All of this said, I would be stunned if you actually allowed someone with the profile I outline above to be on the jury.

Presumably, that would be followed by a prompt dismissal.

M.W. in Northbrook, IL, asks: Your voir dire questionnaire comment indicated that potential jurors will be asked about "media consumption habits." I'm curious how you think potential jurors will be stereotyped based on what sites/outlets they consume. I'll start with a comment on those that follow "Attorneys will view these potential jurors as anti-Trump, yet interested in data. They are smart and certainly capable of assessing the evidence and making a reasoned assessment. They also already know that TFG is guilty as hell."

How will attorneys assess those that consume CNN, MSNBC, Fox, Breitbart, Newsmax, the East Cupcake Middle School Reporter, etc.

(V) & (Z) answer: Obviously, you sent in your question before the jurors were selected, with the result that the answer is now known. Clearly, there were three acceptable "patterns" of consumption: (1) following only mainstream media sources like The New York Times and The Wall Street Journal, (2) following a mix of sources that includes some partisan outlets from both sides of the aisle, like Fox and MSNBC, and (3) following no news sources. We assume pattern one says "this person is well-informed and fair-minded," pattern two says "this person is not hyperpartisan" and pattern three says "this person doesn't know much of the world, and will be a blank slate."

J.C. in Ulaanbaatar, Mongolia, asks: I don't get how in the trial of The Predecessor, the foreperson for the jury is #1, already picked. The only time I've been on a jury was in Los Angeles, and we the jurors as our first action determined who the foreperson was. (We found the defendant guilty of theft, and were promptly told that he had fled so there was now a bench warrant out for him.)

(V) & (Z) answer: New York law says that "Unless otherwise determined by the court, the juror whose name was first drawn shall be designated as the foreperson."

That's not really that much more random than having 6 or 9 or 12 people who don't know each other vote for a "leader."

D.T. in Columbus, OH, asks: Do you think six alternate jurors is enough?

Throughout the trial, it seems pretty likely that at least a couple of the jurors will be kicked off, as people dig through their entire online posting history. A few more might ask to be excused after they receive the inevitable death threats.

What happens if they run out of alternates?

(V) & (Z) answer: Six is the maximum allowed under New York law, excepting in murder cases. Judge Juan Merchan is going to be very reluctant to release jurors, particularly after the first one or two, because if the total number of jurors drops below 12, then it's a mistrial.

J.C. in Lockport, IL, asks: I've been selected for jury duty three times but have never been empaneled on a trial jury. I've always wanted to because it seems fascinating, but I'm starting to have second thoughts. It seems to me that anyone with even an above-average set of sleuthing skills could probably identify 75% of the jurors in the Trump trial simply based on the descriptions that you've posted. Are these descriptions leaks or is this information publicly available? If it's public knowledge, why, and can one request that no identifying features (gender, age, occupation, etc.) be shared?

(V) & (Z) answer: The information that has been posted has been gleaned by reporters in the courtroom, based on questions asked in open court during voir dire. That is why there is much specificity in the things that every would-be juror gets asked about (media consumption, profession, education status, etc.) but vagueness about the things the reporters can only guess at, like people's ages.

We actually don't think, on the whole, that the jurors are all that identifiable. Yes, one empaneled juror was outed, but she had a very unusual profession, namely oncology nurse. It's also possible that she gave friends and family additional information, like "Ugh. I've been called for jury duty on Monday," or that she wasn't entirely outed and that friends/family merely suspected, like "Hey, I see that one of the jurors is an unmarried oncology nurse. Is that you?" Certainly, none of the others have been outed since then-Juror 2 was dismissed.

And the would-be jurors cannot ask for additional protections, as the attorneys have the right to ask them about these details. In fact, for at least some period of time, the jurors did not know they were anonymous. They might have learned it from the newspapers, but reportedly the Judge did not tell the members it is an anonymous jury until all 18 people were seated.

J.M. in St. Cloud, MN, asks: In light of the court's request for the media to protect the jurors anonymity, why is publishing information regarding the jurors that may be used to identify them?

(V) & (Z) answer: As we note above, we are doubtful that in a city of 8 million+ people, any of the profiles is distinctive enough to finger a single individual conclusively. And if any of them are, well, we got all the information we noted from The New York Times, The Washington Post and Politico. It most certainly would not be us who was responsible for cracking the veil of secrecy.

J.B. in Billings, MT, asks: I'm curious about the attention and, dare I say, gossip about jury for the first criminal trial has received so far. Did I miss speculation about the identities of the jurors from the previous civil trials (I read your site every day)? Did someone drop the ball or is this a difference in civil vs. criminal cases?

(V) & (Z) answer: You might be slightly jumbling your details here. There was one other criminal case, the one prosecuted by Letitia James. However, there was no jury gossip in that one because there was no jury. It was a bench trial.

There was also a civil case, the E. Jean Carroll case, and it did have a jury. But the key difference is not civil vs. criminal, it's state vs. federal. The Carroll case was moved to federal court because part of the defense involved claims of presidential immunity. And federal courts allow much more aggressive protection of jurors' anonymity. In federal cases, in fact, the identities of the jurors can even be hidden from the judge and from the attorneys. Not so in state cases, at least not in New York.

J.S. in Hillsboro, OR, asks: If the jurors in Trump's trial are meant to be anonymous—even to the lawyers—how can their social media accounts be scanned for bias?

Or did I misremember one of these details?

(V) & (Z) answer: As we note above, federal juries can be completely anonymous. But in New York State, jurors can only be anonymous to the general public. The lawyers on both sides, along with the various other officers of the court, know who the jurors are.

That said, this problem is not insurmountable, even if the lawyers/judge don't know the jurors' identities. A special master can be hired to research social media, flag anything that's questionable, and then submit it to the Court, with identifying details redacted. For example:


J.E. in San Jose, CA, asks: Now that there are jury members, would stalling tactics lose effectiveness? If I were on a jury and the defense was continually denied in their attempts to delay, it would encourage me to think they were hiding something, especially if I weren't following the news and did not realize that they had been successfully pushing back the start of the trial up to this point.

(V) & (Z) answer: Well, the jury is generally kept in the dark on such things, because it could indeed be prejudicial. If there's a two-day delay because, say, Trump's lawyers tried for an interlocutory appeal, then the jurors will just be told that court is not in session for a couple of days, and won't be told why.

D.E. in Ashburn, VA, asks: Regarding the all-important jury in the Trump hush-money trial, I was wondering if this scenario would be possible: Using online sources, the defense team determines that a particular juror (or two, three, etc.) is undeniably biased against Trump but they let them get through the selection process on purpose anyway. Then the Trump team holds on to their information until the end of the trial, at which time they reveal it as cause for a mistrial or appeal. Possible? Likely?

(V) & (Z) answer: Possible? Maybe. But it would be hard to pull off without raising suspicions. If Trump's defense team were to present Juan Merchan with such evidence about three jurors on, say, the last day of the trial, the Judge would have two questions: (1) Why did it take you so long to find this, since you were supposed to be searching during the process of jury selection? and (2) How is it that you came up with information about three jurors all at once? Our guess is that the Judge would say something like: "I don't believe you found all this in the last 24 hours. And clearly, you did not consider this information to be all that problematic, or you would have come to me when you found it. So, I will not be dismissing any jurors."

S.C. in Mountain View, CA, asks: What would happen if, say on Monday, Trump were to fire his lawyers in the hush money case? Would he be allowed to hire new lawyers (causing delay), or would the judge just appoint a public defender and tell Trump that he can't fire the public defender?

(V) & (Z) answer: Probably neither. Once a trial is underway, Trump (or any other defendant) has to show very good cause for why he wants to fire his lawyers. If the judge bought it, then Trump would have to hire new lawyers. This would indeed create a delay, and for that reason, Trump would have do a far better job of selling his need for new counsel than he did with selling, say, Trump Steaks or Trump Vodka.

J.A. in Rutland, VT, asks: I keep seeing that the prosecutor is asking the judge to charge Trump with violating the judge's gag order. I don't understand why this is necessary, or even normal. If the judge issued the gag order, isn't it the judge's duty to enforce the gag order himself without any action by the prosecutor?

(V) & (Z) answer: One person cannot plausibly monitor all social media channels, all TV cable channels, all political rallies, etc. And so, it is both appropriate and necessary for other officers of the court to bring breaches to the Court's attention.

L.P. in Chippewa Falls, WI, asks: It is without a doubt that Donald Trump is violating the gag order. He knows he is and is doing it on purpose. He wants to be thrown in jail. Free news coverage, martyrdom, whatever; nothing good will come of him going to jail. Presumably there are limits to a fine. $1,000 has been talked about, but that is nothing for him (or his MAGA supporters) to pay. And I assume that a million-dollar fine is illegal.

Here is my simple idea. Every violation comes with one hour of community service and that service has to be approved by a judge. So, my question is: Can a judge sentence Trump to put on a road safety vest and pick up trash in Central Park? I would imagine that job is a universe beneath him and would be extremely humiliating.

(V) & (Z) answer: New York law only allows two penalties: (1) $1,000 per offense, and (2) up to 30 days in jail. There's no room for judicial creativity.

J.A. in Forest, VA, asks: Something I saw in The New York Times got me to wondering. The writers pointed out that Juan Merchan does not have to sentence Trump to time in prison if he's convicted, that probation is also an option. Wouldn't a sentence of probation prevent Trump from leaving New York, require him to report to a probation officer at frequent intervals, and in other ways restrict his movements?

(V) & (Z) answer: The state has something called the New York State Probation Interstate Compact, which allows people on probation to live, and report to a probation oficer, in a jurisdiction outside of New York. So, Trump's residing in Florida would not be a problem. They would presumably, with input from a judge, work out an arrangement that would allow him freedom of movement to campaign and, if he's reelected, to serve as president.

D.B. in San Diego, CA, asks: I get that sitting in court all day can be tedious and boring, but the fact that Trump has apparently fallen asleep in each of the first 2 days of the trial makes me wonder. The medical-expert side of the Internet seems to agree that excessive daytime sleepiness is linked with dementia, but I have a separate question: Do you have any idea of how often he's had to REMAIN in public for 6-8 hours consecutively in the last several months?

Maybe the reason that he tried so hard to avoid the trials was simply having to be in public so much each day?

(V) & (Z) answer: Few presidents or presidential candidates are in public for 6-8 consecutive hours very often. They tend to spend some of that time in a limousine, or airplane, or private meeting, even if they are "out and about."

And while excessive sleeping/tiredness can be a symptom of dementia, there are lots of other possible explanations. He could have sleep apnea. The trial could be forcing him to awaken and/or get out of bed earlier than he's used to. His shirt collar could be too tight, reducing blood supply to the brain. It could be too warm for him in the courtroom. We think the armchair doctors on the Internet are reaching a bit here.

S.K. in Sunnyvale, CA, asks: Help me understand this bond business. I thought for cases like this, either the defendant, or a bond company hired by the defendant, would have to put the bond value—actual liquid money—into an escrow account, which would go to the state if the appeal fails. How else can the court have confidence they aren't being conned when dealing with convicted (pending appeal) con men?

(V) & (Z) answer: They may have to put some of it in an escrow account, but not all of it, and usually not most of it. That's why it's important for a bond issuer be licensed in New York—the state knows who they are, knows what assets they have that can be seized if needed, and knows that going south on one bond means the end of that bond issuer's business. In those circumstances, a promise to pay if the defendant does not is good enough.

B.K. in Dallas, TX, asks: If Donald Trump goes to jail, what happens with the Secret Service people? Do they get a cell next to his? How do they protect him while he is in there? Do they even try? Is there a point where he loses the protection? If he is convicted, then what?

(V) & (Z) answer: We have answered this question before, but we get it often, so...

Nobody knows the answers to these questions because the situation has never happened, or even been contemplated, before. As a practical matter, however, a former president would probably have to be isolated from the general prison population, and might well have to be assigned to their own prison (which would almost certainly be a structure of some sort, like an army barracks, repurposed as a holding cell). Under those circumstances, the Secret Service can serve as prison guards as well as anyone else, and so might as well do the job. Unless the legislation from Bennie Thompson (see above) passes, a former president's security detail can only be dismissed if he dies, or he requests that the protection be removed.

M.A. in Knoxville, TN, asks: It's been reported that Aileen Cannon has tanked her reputation badly enough with her behavior regarding Trump's trial her law clerks are concerned their clerkship with her will mar their record and be a "drag on their résumés." If this causes her to have problems getting new clerks, how will that impact her future? Could she even do her job as a federal judge without a full staff of clerks?

(V) & (Z) answer: Even if this is generally true (and it might be), she could always focus her efforts on conservative law clerks who are members of the Federalist Society, or she could broaden her net and accept clerks from less prestigious law schools. A graduate of Yale or Stanford Law can be picky, but a graduate of the University of Cincinnati Law School or Belmont University's Law School would presumably jump at any federal clerkship.

She definitely does need clerks, though, because the work is far too much for her to handle alone.

G.W. in Oxnard, CA, asks: Why isn't there some ambitious Republican AG or prosecutor charging Barack Obama, Bill Clinton, or Jimmy Carter with some crime(s) as payback for indicting Donald Trump, in the way the House impeached Secretary of Homeland Security Alejandro Mayorkas as payback for impeaching Trump?

(V) & (Z) answer: Attorneys general have no criminal jurisdiction, and cannot bring criminal charges. As to the folks who CAN bring charges (district attorneys and the like), they don't get to make those decisions unilaterally. No, they have to get an indictment from a grand jury. That's not going to be easy to do for the three former Democratic presidents, since there's no evidence any of them have committed a crime.

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