How Will Donald Trump’s Trial Play on the Campaign Trail?

On December 15, 2015, Donald Trump and eight other Republicans contending for their party’s Presidential nomination met for their fifth debate, in Las Vegas. Trump set the tone, both with his bullying of Jeb Bush and in the discussion of his call, a week earlier, for a “total and complete shutdown of Muslims entering the United States.” Rather than recoiling, his opponents tended to express understanding for Trump’s perspective, while claiming they’d be more effective: Ted Cruz wanted a narrower ban; Ben Carson wanted government surveillance of mosques and supermarkets; Carly Fiorina wanted private companies to help with the spying. Rand Paul managed to warn people who supported Trump, “Think—do you believe in the Constitution?” Five years later, Paul was insinuating that Democrats had stolen the 2020 election from Trump.

On December 4, 2023, Trump is due to be in a courtroom in Manhattan, for a pretrial hearing in the criminal case that Alvin Bragg, the New York County District Attorney, has brought against him on thirty-four counts of falsifying business records in the first degree—a felony. Trump will also likely be preparing for what will be the fifth G.O.P. debate of this Presidential cycle, at a venue to be determined. The Republican National Committee recently announced that the first debate will take place in August, in Milwaukee. The exact date has not been set, but the R.N.C. might note that Judge Juan Merchan, who is presiding over Trump’s case, has given his lawyers until August 8th to file preliminary motions, which could include such matters as a request for a change of venue or for a dismissal.

Milwaukee was chosen because the Party’s Convention will be in that city. Wisconsin went narrowly for Trump in 2016, and for Biden in 2020, and both parties have invested heavily in races there, most recently for the state Supreme Court. (The Democrat, Janet Protasiewicz, won decisively; abortion and redistricting were central issues.) In picking the other debate sites, the R.N.C. may now have to consider how logistically convenient it is for Trump to travel from the courthouse to the stage—and how politically convenient, or disastrous, it will be for the other candidates to be asked about the proceedings.

Trump, in other words, must operate with two calendars in mind—the court’s and the campaign’s—and so must much of the machinery of American politics. At his arraignment, on April 4th, prosecutors indicated that a trial wouldn’t begin until early next year; a number of Republican primaries will be in February. Should a judge, say, reschedule jury selection to account for them? The complexity will multiply if, as expected, Fani Willis, the D.A. for Fulton County, Georgia, brings charges related to Trump’s efforts to overturn the state’s election results, and if Jack Smith, the special counsel, does so in connection with either Trump’s actions ahead of the January 6th assault on the Capitol or his handling of government documents, or both. Those investigations might have their hearing calendars crowded by the one in New York. That would be unfortunate, as Bragg’s case is, by many measures, the flimsiest of them.

The indictment principally addresses the payment of a hundred and thirty thousand dollars, in October of 2016, to Stormy Daniels, an adult-movie star, allegedly for her silence about a consensual sexual encounter; such a payment is, in itself, not illegal. In contrast, the Georgia case involves the alleged procurement of fraudulent ballots and a phony certificate for the state’s sixteen electoral votes, which is most definitely illegal. (Trump denies any wrongdoing.) Bragg has charged that Trump had his lawyer Michael Cohen front the money for Daniels and then reimbursed him, in eleven payments, in a way that created thirty-four false business records (checks, invoices, ledger entries). Each might be a misdemeanor; what would make them a felony is an intent to defraud and commit or conceal another crime. Bragg has chosen not to specify what that other crime is yet, either in the indictment or in an accompanying “statement of facts,” other than to suggest that it has something to do with elections, or maybe taxes—maybe federal, maybe state, maybe an untested hybrid. (The underlying records case is also less tight than expected.) Ruth Marcus, in the Washington Post, detected “a certain circularity” in the linkages; she called the indictment “disturbingly unilluminating.”

It may seem unfair that voters didn’t get to know about Daniels before the election, but withholding a candidate’s marital infidelities is not criminal election fraud. Bragg’s job as a prosecutor is to pull a legally recognizable charge from a haze of crookedness, and so far he has not done so. This omission is distinctly damaging when a good part of the country thinks that the case is a setup. Even if Bragg wins a conviction—his case could get stronger—or another prosecutor does, there will likely be years of appeals ahead, with more hearings to schedule and conflicting dates to consider. One could be Inauguration Day. A felony conviction—even thirty-four of them—does not disqualify Trump or anyone else from running for President. In 1920, Eugene V. Debs, the Socialist candidate, heard the election results while in federal prison; he had been convicted under the Espionage Act for speaking against the First World War. (His supporters printed badges with a picture of Debs in prison clothing; Trump, in a farcical echo, is selling T-shirts with a fake mug shot.)

Judge Merchan and his colleagues in other jurisdictions will have to make calls, too, about how to reasonably accommodate the electoral process. Profound constitutional issues come into play, as Merchan recognized in the arraignment hearing. After prosecutors raised the issue of derogatory and possibly threatening statements that Trump had made about Bragg and about the judge, Merchan said that he would not impose a gag order—at least, not yet. “Such restraints are the most serious and least tolerable on First Amendment rights,” he said, using the language of a 1976 Supreme Court decision. “That does apply doubly to Mr. Trump, because he is a candidate for the Presidency of the United States.”

Merchan’s observation is, in a way, as much about the voters’ rights as it is about Trump’s. Candidacy does not confer impunity. But Trump will not be the last politician to be indicted by a prosecutor from an opposing political party, and this case may well set standards with which the country as a whole will have to live. ♦

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