What the Trump trials really mean

Quinta Jurecic on covering the first-ever criminal trial of a former president

The first-ever criminal trial of a former president has presented a number of challenges (and been a bit surreal), even for seasoned legal experts. It’s a case — and a news story — with few parallels in American history. And while the facts and law have varying degrees of complexity, the big picture, what it all means, has been anything but simple. 

Quinta Jurecic has covered issues surrounding criminal and congressional investigations of executive branch officials for Lawfare for many years. She covered the Mueller investigation, Trump impeachments, and Congressional efforts to subpoena federal officials. She has been a strong proponent of the separation of powers and maintaining the prerogatives of Congress, as well as the importance of holding high-ranking political actors accountable with criminal prosecutions when warranted by the law. 

Most recently, she has been in the room to observe Trump’s recent trial in New York and has delved deeply into the legal basis for the charges against him. We asked her to share some of her insights.

Thanks for joining us, Quinta. What have you found to be most challenging about covering the Trump trials?

First, I want to give a shout-out to my brilliant and hardworking colleagues at Lawfare who have been in the New York courtroom day in and day out over the course of the trial—Benjamin Wittes, Anna Bower, and Tyler McBrien. Their work has been invaluable, and I’m even more impressed by it after spending a few days in the courtroom myself. Our colleague Roger Parloff has also done a huge service by regularly making the trek down to Ft. Pierce, Florida, to cover the Mar-a-Lago case. 

Each of the four different cases has presented its own challenges. I’ve been most focused on New York along with the Washington, D.C. case (that is, the federal charges against Trump over January 6). I’m far more familiar with federal proceedings than cases in state court, and have never closely covered anything in New York court before, so there has been a pretty steep learning curve in terms of getting up to speed with state law and practice. For example, a lot of initial commentary around the New York charges framed them as unprecedented — but a look at New York case law shows that the statute under which Trump was charged, Penal Law 175.10, is actually a very expansive statute that prosecutors have used in a variety of different contexts. 

It’s also far more difficult to track down filings in the New York case than it is in federal court, where everything is docketed on PACER. The New York Supreme Court has taken valuable steps to make the case more transparent — including posting transcripts of the proceedings on the court’s website — but there are often documents floating around that have been entered into evidence or otherwise should be publicly available that never make it online. For obvious reasons, this makes it difficult to cover the trial in the detail we would like.

You have written about what the New York charges against Trump – using his business to hide alleged sexual relationships with two women in the adult entertainment industry – tell us about his attitudes toward women. Can you boil that down for our readers?

The charges in the New York case focus on Trump’s alleged falsification of business records, rather than anything concerning sexual abuse or harassment. That said, that element of Trump’s character has never been far from the center of the picture. The Manhattan District Attorney’s Office has argued that the 2016 Trump campaign feared a collapse among female voters after the publication of the Access Hollywood tape, which captured Trump bragging about assaulting women. That anxiety, according to prosecutors, led Trump to direct payments to two women, Stormy Daniels and Karen McDougal, who were threatening to come forward and speak to the press about their past sexual relationships with Trump. It was the efforts to cover up the Daniels payment, prosecutors say, that led to the allegedly falsified records over which Trump has been charged. 

The role of the Access Hollywood tape is telling: the tape speaks to Trump’s understanding of women as objects to be dominated rather than people to be treated with respect. For that reason, it was striking to see Stormy Daniels testify at the trial about her interaction with Trump. (I wasn’t at the courthouse that day, but my colleagues were.) She described their sex as consensual, but other aspects of her account — she said that she didn’t want to sleep with him and hadn’t expected to, and that he placed himself between her and the door — echoed a lot of the stories that became common during the #MeToo movement.  

Stepping back from the New York trial, what conclusions can we draw from the criminal cases overall (and Trump’s responses) about how he would govern and conduct himself in office if elected to another term?

Taken as a whole, the four criminal indictments sketch a consistent portrait: Trump is someone who understands the presidency as primarily a tool for personal gain, rather than an office he once held on behalf of the American people. He is willing to lie and cheat to obtain power and incapable of giving up that power once he holds it. He seems unable to comprehend that rules might apply to him or that the presidency might rightfully be held by anyone else.

Over the course of the pretrial proceedings in all four cases, and in the New York trial, Trump’s rhetoric has moved into a dark, vindictive mode focused overwhelmingly on threats of retribution against those he feels have wronged him, including the prosecutors and judges in these cases. He used these techniques during his first term, but he’s come to rely much more heavily on them in recent months — which is particularly concerning given that his followers seem willing to act on his hints by threatening and even attacking Trump’s perceived enemies. All this adds up to a vision of a second Trump term where the president would feel himself to be unconstrained by law and might use the anger of his supporters as a tool to frighten his opponents into submission. That is, obviously, not a description of a well-functioning democracy.

What have Trump’s various criminal proceedings revealed about the ability of the courts to uphold the rule of law and ensure accountability? I’m thinking especially of how Trump’s federal cases have proceeded much more haltingly than his New York prosecution.

As the proceedings against Trump have dragged on without a major change in his polling numbers, I’ve seen more and more commentators scold onlookers for thinking that the courts would somehow “save” the country from Trump or obviate the need for more traditional forms of politics. Of course the legal system on its own was never going to remove Trump as a political contender! But that doesn’t mean that the courts and law enforcement can’t play a valuable role. 

The New York case, for example, was criticized when District Attorney Alvin Bragg first unveiled it as essentially small potatoes — an act of wrongdoing so minor compared to Trump’s other offenses that it wasn’t worth pursuing. But I’ve come to think that there’s a particular power in bringing Trump into court to answer for this alleged offense precisely because the charges are so mundane. The Manhattan District Attorney prosecutes business record falsification cases all the time. Why should the Trump Organization be any different? As one reporter commented to me while we were waiting in line to enter the courthouse, there’s a certain kind of justice in how, for the duration of the trial, Trump is subject to many of the small indignities that a man of his power is usually able to avoid. He has to sit in a room that’s too hot or too cold, with bad lighting, in an uncomfortable chair, all day long. He has to ask for the judge’s approval to attend his son’s high school graduation. He’s been afforded many luxuries that the average criminal defendant doesn’t have access to, but he’s also being reminded that, no matter what the verdict may turn out to be, he really isn’t above the authority of New York law.

The counterpoint is the federal trials, which Trump has so far successfully managed to delay — in the case of the January 6 trial, thanks to the Supreme Court, and regarding the Mar-a-Lago case, thanks to Judge Aileen Cannon, whom Trump himself appointed to the bench. Judge Cannon’s willingness to entertain frankly absurd arguments made by Trump’s legal team suggests the unique difficulty of seeking to hold a former president accountable through a legal system that he himself has shaped. 

When it comes to the Supreme Court, it’s hard to say before we see just how the justices rule on Trump’s immunity appeal. I’ve come to think, though, that it speaks to the unwillingness or inability of many institutions to treat the current threat to democracy with the urgency it deserves. Trump is able to potentially run out the clock in the first place because of the Justice Department’s delay in bringing the case against him; the Supreme Court justices, meanwhile, seemed more interested in pondering far-flung hypotheticals during oral argument in U.S. v. Trump than they were in actually addressing the comparatively simple question at the heart of the case. On the federal level, the institution that has done the best job in responding to the anti-democratic threat posed by a second Trump term is the House January 6 Committee, which clearly established Trump’s efforts to overturn the election and even seems to have provided the Justice Department with new fodder for its then-ongoing investigation. 

Perhaps that’s because the committee, unlike the Supreme Court and the Justice Department, didn’t need to be concerned with appearing political.