Analysis: The underlying issue in prosecuting Trump

Patrick T. Brown, a fellow at the Ethics and Public Policy Center in Washington, DC and former senior policy adviser to Congress’ Joint Economic Committee, shares his views in this piece. You can follow him on Twitter. The opinions expressed here are his own. For more opinions, visit CNN.

In a 1987 novel by Tom Wolfe, a character named Assistant District Attorney Larry Kramer reveals a common practice in selecting juries for criminal trials in New York City. Kramer mentions that jurors often enter the jury box with preconceived notions, creating an "Us versus Them" mentality.

Patrick T. Brown

Patrick T. Brown

In "The Bonfire of the Vanities," the main division was based on race. However, in this week's extensive New York trial of former President Donald Trump for allegedly falsifying business records related to hush money given to an adult film star, the significant divide is now along partisan lines.

Finding acceptable jurors for the unprecedented prosecution of a former president is proving to be a challenging task. On the first day of jury selection, over half of the first group of prospective jurors, about 50 individuals, were dismissed because they admitted they could not be impartial. This mass dismissal highlights the difficulty of the situation and sets the tone for what is to come in a trial that is already tainted by political undertones.

Given the clear political motivations behind this case, it is not surprising that finding unbiased jurors will be a tough feat. The fact that the prosecution of a former president is unprecedented adds another layer of complexity to the situation. The circus surrounding this trial only serves to reinforce the idea that perhaps this particular case was not the best choice to set such a significant precedent.

Though seven new jurors were officially sworn in on Tuesday, there were still some issues with having a jury pool influenced by politics. During the questioning of one potential juror, Trump's legal team discovered social media posts where the juror mentioned Trump with phrases like "Get him out" and "Lock him up." As a result, this juror was removed from consideration.

Former US President Donald Trump attends the first day of his trial for allegedly covering up hush money payments linked to extramarital affairs, at Manhattan Criminal Court in New York City on April 15, 2024. Trump is in court Monday as the first US ex-president ever to be criminally prosecuted, a seismic moment for the United States as the presumptive Republican nominee campaigns to re-take the White House. The scandal-plagued 77-year-old is accused of falsifying business records in a scheme to cover up an alleged sexual encounter with adult film actress Stormy Daniels to shield his 2016 election campaign from adverse publicity. (Photo by Jabin Botsford / POOL / AFP) (Photo by JABIN BOTSFORD/POOL/AFP via Getty Images)

Former US President Donald Trump is currently facing trial in Manhattan Criminal Court for allegedly concealing hush money payments related to extramarital affairs. This marks the first time a former US president is being criminally prosecuted, a significant moment for the country as Trump seeks to run for the White House again. The 77-year-old is accused of falsifying business records to cover up a reported sexual encounter with adult film actress Stormy Daniels during his 2016 election campaign to avoid negative publicity. (Photo by Jabin Botsford / POOL / AFP) (Photo by JABIN BOTSFORD/POOL/AFP via Getty Images)

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It is unlikely that this case would be prosecuted with the same vigor and creative legal theorizing if Trump were an everyday citizen. Manhattan District Attorney Alvin Bragg made it a priority to focus on the ongoing investigation of Trump when he took office. He would have faced political pressure from New York Democrats if he had decided to close the investigation without bringing charges.

As reported by The New York Times in March 2023, Bragg's office took a winding path to filing criminal charges. They revived a fading investigation that initially looked into Trump's business practices, now with a renewed emphasis on hush money payments.

To Bragg’s supporters, they see his thoroughness and determination in leaving no stone unturned. On the other hand, his critics view the prolonged investigation as a District Attorney searching for a crime to pin on an unpopular figure. (Trump maintains his innocence.)

The controversy revolves around allegations that Trump made hush money payments to former adult film actress Stormy Daniels. It's important to note that making such payments is not inherently illegal. The case against Trump is based on a broad interpretation of the law: Trump listed his repayment to his former lawyer, Michael Cohen, who handled the Daniels payment, as a legitimate business expense. This misrepresentation could be considered a minor offense under New York state law.

Bragg is not letting Trump off easily. He believes that Trump's misdemeanor offense was actually a violation of federal campaign finance laws. The Federal Election Commission decided not to charge Trump with breaking election laws because Cohen had already admitted guilt. They felt that pursuing further government action would not be the best use of resources.

Former US President Donald Trump and attorney Susan Necheles attend a hearing to determine the date of his trial for allegedly covering up hush money payments linked to extramarital affairs, at Manhattan Criminal Court in New York City on March 25, 2024.

Former US President Donald Trump and attorney Susan Necheles were present at a hearing held at Manhattan Criminal Court in New York City on March 25, 2024. They were there to determine the trial date regarding allegations of covering up hush money payments related to extramarital affairs.

Mary Altaffer/Pool/AFP/Getty Images

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Another issue raised by National Review’s Andrew McCarthy is that Bragg, a state prosecutor, is attempting to enforce a federal law by bringing a case against Trump for an offense that the federal government did not find him guilty of. This move by Bragg seems to be a political maneuver to create a new election law.

However, Trump is not without fault in this situation. His past questionable actions and character flaws are once again in the spotlight during this trial, involving terms like “hush money” and “porn star.” While this case is under close legal scrutiny, Trump faces other pending trials that pose a greater risk of serious legal consequences, such as mishandling classified information at his Mar-a-Lago residence and attempting to pressure Georgia election officials in 2020.

It's understandable why some jurors may struggle to remain impartial. Trump has been a prominent figure in the media, social media, and politics for many years. His celebrity status, controversial social media posts, and divisive political language make it difficult for even the most level-headed juror to see him as just an individual rather than a political figure.

Trump has a unique ability to rally his supporters to defend actions that may seem indefensible to others. At the same time, he prompts his opponents to go to great lengths to try to stop his political ambitions. Regardless of the outcome of the current trial, it serves as a reminder of how Republicans could have chosen a presidential candidate with less controversial history.

Many people did not expect it, but now they are experiencing a sense of unity in what could be the first and possibly only criminal case involving Trump that will go to trial before Election Day. Subscribe to our weekly newsletter for free.

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If Democrats use creative legal theories to prevent Trump from taking office, some voters may question the sincerity of their talk about upholding "constitutional norms".

The recent Supreme Court decision, which unanimously rejected Colorado's effort to remove Trump from the ballot, serves as a reminder that clever tactics to keep Trump out of the White House can backfire. Additionally, the weak hush money case may lead Trump's supporters to downplay the gravity of other accusations against him, potentially reducing their political impact in November.

Bragg’s decision to pursue this case, which has a weak connection to an actual crime, needs to be understood in its political context. This weak case may make it harder to challenge Trump’s more serious actions in the future. The upcoming jury selection and court proceedings will showcase the deep divisions between "Us" and "Them." Trump's unique ability to push his supporters and opponents beyond normal political battles to secure a victory will continue to set him apart.

Editor's P/S:

The article highlights the challenges in finding impartial jurors for the trial of former President Donald Trump. Due to the high-profile nature of the case and Trump's divisive political persona, potential jurors have strong preconceived notions that make it difficult for them to be objective. The fact that the prosecution is politically motivated further complicates the situation, raising questions about whether this case should have been brought to trial in the first place.

The article also sheds light on the underlying political motivations behind the prosecution. Manhattan District Attorney Alvin Bragg is under pressure from New York Democrats to pursue charges against Trump, and the case has become a political chess game. Some critics argue that the charges are weak and the investigation was revived primarily to damage Trump's political ambitions. The controversy surrounding the hush money payments and Trump's past actions have made it difficult to separate the legal issues from the political context, ensuring that the trial will be a polarizing and politically charged event.