Courts

The Hidden Secrets Of The Trump Criminal Trial

Part of the reason Donald Trump is sleeping through his trial? Trials are dull.

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Jury Selection In Donald Trump’s Hush-Money Criminal Trial

(Photo by Jabin Botsford/The Washington Post/Bloomberg via Getty Images)

Alvin Bragg’s criminal case against Donald Trump has received as much press coverage as just about any trial.

Despite that, you have no idea what’s going on in the courtroom.

That’s true for two reasons: First, trials are tedious. There are, of course, occasional fireworks, but those are few and far between. For the most part, trials are long sessions of boring questions with people reading from documents. (That explains, in part, why Trump is sleeping through parts of his trial. Trials are dull.)

Press reports, unlike trials, cannot be tedious. If press reports were boring, then no one would read (or listen to) them. Thus, by definition, what you hear in the press is a condensed, and much more interesting, version of the trial than is actually occurring. Moreover, the press reports are focusing on what the reporter thinks is interesting. You have no idea whether that’s what any particular juror thought was interesting.

Second, as a general matter, you always think that your side is winning at trial.  Through four decades as a litigator, I’ve sat through an awful lot of trials in my life. (Admittedly, those have all been civil cases; perhaps criminal cases are different.) During all of those trials, the team on my side of the “v” has always thought that we were winning. That’s perfectly natural, and it happens for two reasons. The first reason is that you’ve been studying your side of the case for years. You know the answers to everything the other side says. You’ve come to believe that your side is right.

The second reason has to do with groupthink. Suppose your side has a terrible day at trial. Your witness was destroyed on cross-examination. Your team assembles for dinner. Everyone is despondent. Somebody says that one aspect of the day actually was okay for your side. Another person latches on to that point. A third person notes something else that went well that day. By the end of dinner, you’ve all convinced yourself that things were not so grim; the day pretty much played to a draw. And you should see how dinner sounds on trial days that actually went well for you. People don’t want to focus on the negative, so they convince themselves that they’re doing better than they are.

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So, too, with television coverage of trials. MSNBC and Fox News each have slanted coverage to begin with. Their viewers don’t want to be burdened with hearing that their side is losing. Independent of that, each station’s panels of pundits are filled with folks who hold similar political views. The one defense lawyer on an MSNBC panel is quickly shouted down by the six other panelists convinced that Trump is being destroyed at trial. On Fox News, it’s exactly the opposite.

Thus, Fox News viewers are hearing, more or less, that, “The judge today threatened to put Donald Trump, a leading candidate for the presidency, in jail.  Just for speaking!” On MSNBC, exactly the same events are cast, more or less, as, “Donald Trump once again took to social media to intimidate witnesses. If Trump were a typical defendant, he’d already be in jail. It’s unbelievable that the judge hasn’t yet locked him up!”

On MSNBC, Keith Davidson, Stormy Daniels’ former lawyer, testified about the seedy underside of the publishing industry and the money that changed hands to conceal stories about Trump’s affairs. Trump was engaged in filthy business. On Fox, you’ll hear that Davidson wanted to get paid before the election because he had more leverage then. “See? Leverage! It was all just a matter of extorting money from Trump.”

On Fox, Hope Hicks testified that Trump wanted to prevent newspaper reports about Stormy Daniels from reaching the White House residence, so Melania wouldn’t be enraged by the reporting. “See? It’s all about Melania! This had nothing to do with the election! Trump was concerned only that his wife would be upset by the Stormy Daniels news.” On MSNBC, Hicks conceded that Trump was concerned about how the Stormy Daniels story would affect the election, so the payment of hush money was election interference. Trump worried about his wife’s reaction, too, but that really doesn’t matter: If a payment served two purposes, one related to an election and one not, it’s still a crime to conceal that payment.

Liberals and conservatives live in two different universes on the best of days. But those two universes have been pulled even further apart by coverage of the ongoing trial.

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Which means one thing: At the end of the trial, one side or the other is going to be startled, and dismayed, to learn that their side lost.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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