On Tuesday, Donald Trump was stuck in a Manhattan courtroom, and Joe Biden was campaigning in Scranton, Pennsylvania. But Biden made no comments about the first criminal trial of a former president and active presidential nominee, instead contrasting their records on the economy, taxes, retirement security, and the pandemic. His campaign’s social media team limited itself to some glancing references to the 45th president’s trial—reacting to the news that Trump nodded off during the proceedings was hard to resist—but made no commentary about the specific charges.
Journalists covering the Biden campaign portrayed these decisions as deliberate tactics. “The plan so far, Biden insiders say: Don’t talk about the trial directly, just let voters see the president on the trail, talking about issues,” reported NOTUS. There’s also a risk of giving the Trump campaign fodder. According to NBC News, “Trump has repeatedly told his supporters that the array of court charges he faces is akin to election interference and accused Biden of persecuting him. Celebrating criminal charges against Trump could play into that narrative.”
I have no quibble with either of these points. But there’s one more reason the Biden campaign should steer clear of Trump’s hush money trial: Trump may not be convicted.
As Ankush Khardori, a former federal prosecutor, cautioned in Politico last week, the prosecution’s case rests heavily on Michael Cohen, Trump’s former attorney and fixer who arranged the hush money payments to Stormy Daniels. But Cohen, having already served time for lying to Congress, is vulnerable to having his credibility attacked.
The prosecution will undoubtedly argue that the case does not solely rely on Cohen’s testimony. Khardori quotes Cohen’s legal advisor, Washington veteran attorney Lanny Davis, who said, “The case against Trump involves multiple witnesses besides Cohen to corroborate the crime of paying illegal hush money under New York law as well as under federal law—backed up by multiple witnesses, documents, text messages, telephone call records, and documents.”
Ultimately, it doesn’t matter what Davis thinks, Khardori, or any other legal analysts. What matters is what the jury thinks.
And we cannot assume the jury is going to think straight.
We have very little information about the first seven people chosen to serve. But my gut reaction is that this jury feels like one of those maddening New York Times focus groups of low-information voters designed in a lab to make its readers scream into their morning lattes.
One juror is a teacher from Harlem who “doesn’t really care for the news” but offered, “President Trump speaks his mind. And I’d rather that than someone who’s in office who you don’t know what they’re thinking.”
Another is an IT consultant from the Lower East Side who finds Trump “fascinating and mysterious. He walks into a room, and he sets people off one way or another. I find that really interesting. Really, this one guy can do all of this. ‘Wow,’ that’s what I think.” A third is an Upper East Side lawyer who said he supports some of Trump’s policies but not others, though he added, “I don’t know the man, and I don’t have opinions about him personally.”
Former federal prosecutor Ken White told the Times yesterday, “The defense wants someone who is independent and freethinking and willing to be the one holdout who hangs the jury—and, ideally, a secret Trump partisan.” I would not be shocked to find that at least one of these jurors fits that bill.
Preventing a stealth Trump partisan from slipping into the jury may be impossible. And even if they are not bad faith actors, one or more jurors may simply be swayed by the defense’s tactics. We just got a reminder of how that can happen in a high-profile trial involving a world-famous celebrity with the passing of O.J. Simpson.
Of course, the dynamics involved were different. To redirect attention away from an overwhelming amount of evidence that Simpson committed murder, defense attorneys used the Los Angeles Police Department’s ample history of racism to undermine the credibility of the investigating officers and suggest acquittal would strike a blow against a discriminatory justice system.
What tactics Trump’s lawyers will use in the courtroom remain to be seen. Still, outside the courtroom, we’ve already seen attacks on the credibility of witnesses, the prosecutors, the judge, and the judge’s family. You and I might see those attacks as the usual wretched, self-serving scurrilousness from Trump. Based on what these jurors have shared about themselves, they don’t.
So, those of us following the trial from home should keep our expectations very low. And the Biden campaign should not hang any piece of their strategy on the trial’s outcome because Trump could walk. By focusing on Trump’s awful performance as president, if there is an acquittal or a mistrial, no dramatic course corrections will be required.
