Dear listeners,
The trial has begun! Judge Juan Merchan seated 12 jurors and 6 alternates in three days of voir dire, which Ken considers a pretty good pace for a case where seating a jury was made unusually complex by the fact that jurors not only have strong pre-existing feelings about the defendant but have often expressed those feelings on social media. Ken discusses his philosophy of choosing a jury as a defense lawyer, why it’s more of an art than a science, and how it will matter that this Manhattan jury is unusually highly educated.
We also discuss a question that, as we sent out this episode, remains before Judge Merchan — should Trump be held in contempt for his repeated public statements about witnesses and the jury, in spite of the gag order on him? Trump argues, not entirely unreasonably, that if Michael Cohen is going to talk about him all over the place, he ought to be able to respond in his own defense. But Judge Merchan didn’t sound satisfied with attorney Todd Blanche’s individual justifications for all the individual statements Trump had been making. Trump also seems to be letting his bad attitude get in the way of a good defense on matters beyond compliance with the gag order — Trump ostentatiously failed to stand to greet the jury, a sign of respect that’s usually worth making to the people who hold your fate in their hands.
And we talk about the theories of the case laid out in opening statements from the prosecution and the defense. Prosecutors have a compelling story: Trump sought to hide the hush payment as part of an effort to win the 2016 election and prevent negative information that might cost him votes from coming to light. Certainly, that describes what happened. But is it really a felony against the laws of New York State? The defense disputes both factual claims — they say the payments to Cohen really were for legal services — and the idea that concealing a payment could constitute illegal election interference. Indeed, Ken and I share Professor Jed Shugerman’s discomfort with the application of the term “election interference” to the act of a candidate trying to get the public to see him in a positive light, which is one of the most core aspects of politics. If anything, prosecutors’ other theory — that the falsification of business records was in order to conceal a tax crime — seems more legally sound, but it doesn’t make for a very compelling story for a jury, especially since that tax crime probably didn’t even cost the government any money.
And amid all this, George Santos has clawed his way back into the news in a small way. Yay! Santos wants to know why Jimmy Kimmel skipped out on the scheduling conference for his copyright infringement case against the late night host and his employer, The Walt Disney Company. Ken says the answer is clients rarely attend these sorts of things, and Kimmel, unlike Santos, has better things to do.
We hope you enjoy the episode. We’ll be back soon with more as the trial unfolds.
Best,
Josh
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