Your questions about Trump’s trial, answered
CNN
Analysis by Zachary B. Wolf, CNN
(CNN) — When CNN asked for your questions about former President Donald Trump’s upcoming first criminal trial – for his role in hush money payments made before the 2016 election to women who said they had affairs with him – we got a flood of input. Not all of it was fit to print.
But there were a lot of legitimate and very thoughtful questions. Keep reading for a representative sampling, which helps explain the case, along with context from CNN’s reporters and coverage.
Most of the questions come directly from reader submissions, but for others, I’ve taken the liberty of simplifying multiple submissions into one question. Trump, by the way, denies having the affairs and has pleaded not guilty in the case.
I went to CNN’s chief legal analyst Laura Coates for the single, most-asked question, which was asked in many ways but boils down to: Could Trump actually go to jail?
Coates: If Trump were to be found guilty of all of the counts, he could theoretically be facing more than a decade in prison. The 34 felony counts are classified as Class E felonies in New York, the lowest level felony in the state.
The maximum penalty for each of those counts is four years; however New York caps sentencing for this type of felony at 20 years. It is within the judge’s discretion to decide whether those sentences would run concurrently or consecutively. Because the crimes involve nonviolent offenses and Trump does not have a criminal record, the judge could also consider jailing him for a period that is but a fraction of the maximum penalty.
Another possibility is that the judge could forego prison entirely and place him on probation with the possibility of incarceration looming over his head if he fails to abide by the conditions set by the judge. If the judge should decide to incarcerate post-conviction, Secret Service would become the elephant in the, well, cell. The unprecedented nature of incarcerating a former president would raise questions about how best to ensure equal treatment under the law and security for a former president.
Watch Coates’ show weeknights at 11 p.m. ET where she’ll answer a lot more of your questions.
I reached out to the Secret Service to ask if they had planned for the potential that Trump could be imprisoned. Not surprisingly, I was told by a spokesman that this is “something we can not comment on at this time.”
But note that as a matter of US law, former presidents and their spouses are afforded lifetime Secret Service protection, unless they decline it.
No. While many states frequently broadcast trials, New York state civil rights law limits what is allowed. The judge, Juan Merchan, could in theory make an exception, but he did not allow cameras to broadcast Trump’s arraignment last year.
It is possible that photos and video inside the courtroom may be taken prior to proceedings, as occurred during his New York civil fraud trial.
Similarly, if or when his federal trials on charges of election interference and mishandling classified data occur, there are rules that likely bar the broadcast of those as well. His trial in Georgia on charges of election interference would be televised if it occurs.
Yes. The judicial process is built around the idea that defendants are there to answer charges, and New York law requires that a defendant be present at trial.
There are a few exceptions. Trump could ask to be excused and waive his right to be present, but the prosecution could object. Disorderly or disruptive defendants can also be removed from court during their trial.
Daniels’ comments and her side of the story are likely to be a big part of the case, according to CNN’s Katelyn Polantz. You can imagine Daniels will be a top witness for the prosecution and that Trump’s team will try to limit what she has to say.
Trials are unpredictable things, Polantz notes. We won’t entirely know who will be called or what they will be allowed to say until it happens.
Trump isn’t technically accused of having an affair, which he denies and which is not illegal. The hush money itself, represented by a contract between two parties, is not necessarily illegal either. Hush money was paid by the Trump-supporting publisher of the National Enquirer to the former Playboy model Karen McDougal, and, separately, it was paid by Trump’s fixer and former attorney Michael Cohen to Daniels.
But in this case, the payments, which were intended to hide details from voters before the 2016 election, violated campaign finance law. National Enquirer’s parent company admitted wrongdoing, and Cohen pleaded guilty to violating campaign law and served time in prison.
Federal prosecutors, as a matter of Department of Justice policy, were unable to prosecute Trump for the payments when he was president and decided not to bring charges after he left office. Manhattan District Attorney Alvin Bragg then brought this case. Trump is accused of falsifying business records (a New York state crime) in an effort to use illegal campaign contributions to influence the 2016 campaign (a federal crime).
Here’s an answer from CNN’s senior legal analyst Elie Honig: He better, because that’s what he’s charged. Just falsifying business records on its own is a misdemeanor. The felony charge here, which is the lowest level felony under New York law, is falsifying business records to further some other crime. Some other crime here is campaign finance violation. So that is a necessary showing that the prosecution must make.
Honig adds that people should look for this odd combination of a state crime (falsifying business records) with a federal crime (campaign finance violations) to be raised during the trial and potentially on appeal if Trump loses the case.
Honig: Probably not. He’s been trying throughout this week (before the trial) and the New York appeals court has disposed of his arguments astonishingly quickly, sometimes in less than an hour. We can’t predict what’s going to happen … and he may try to continue appealing up the chain, but so far we’ve seen the appeals courts very quickly shut it down.
Nothing about any of this is normal. Trump’s stated legal strategy is to delay legal proceedings as much as possible in the hope that they do not conclude before the presidential election.
It’s a strategy that so far is paying off in federal court. His federal election interference case is stalled until the US Supreme Court considers what most people consider to be a ridiculous total immunity argument later this month. His federal trial on classified documents is proceeding slowly in Miami. His trial in Fulton County, Georgia, on state election interference allegations has been delayed by allegations of impropriety in the personal life of the DA bringing the case.
In New York, Trump’s attempts to appeal the judge’s pretrial decisions have also been made in an effort to delay the start of the trial, but so far that tactic hasn’t worked in this case.
Very little. While Trump, under New York law, has a right to know their names, their identities will be kept from public view. A gag order in place forbids Trump from making statements about them.
But we will know from juror questioning a lot about how they live their lives, where they get their news and their politics.
Norman Eisen, a CNN legal analyst who edited a book on Trump ahead of this trial, writes for CNN Opinion that the former president could be hoping with his strategy of grievances, constant motions and losing appeals to taint the New York jury pool and generate “one angry juror” who is willing to ignore the law and simply vote to acquit him no matter what.
This is a great and essentially unanswerable hypothetical. First, it assumes multiple things will occur: Trump would have to be convicted, sentenced, exhaust appeals, report to prison and win the election. That’s a very specific scenario thrust upon a very unpredictable set of circumstances and a short timeline. But here we go.
I talked to Frank Bowman, a law professor emeritus at the University of Missouri who is both an expert in criminal law and published a book on the impeachment process, for his thoughts on how to deal with a convict president. The Constitution, he said, theoretically allows a person to serve “even if he’s a convicted felon or even if he’s a convicted felon in the joint.”
Timing, however, would get in the way of this hypothetical ever occurring. “This stuff takes a long time, and the appeals would drag out,” probably beyond Election Day and Inauguration Day, Bowman said.
It’s also possible Trump’s opponents, after a conviction, could try again to either impeach him or object to his presidency based on the 14th Amendment, although those avenues have been tried and failed previously.
If somehow Trump was convicted in this state case, Bowman imagined there could be some argument by which the Constitution’s Supremacy Clause – which prohibits states from interfering in the exercise of constitutional powers – could be utilized to keep Trump from state prison. But it would be a novel thing.
If, on the other hand, Trump was somehow convicted in one of his two federal trials and sentenced to federal prison, as president he could theoretically try to pardon himself or order the Bureau of Prisons to do something like confine him at the White House. Again, this is uncharted territory that is unanticipated in US law and, Bowman argues, unlikely to occur.
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