The approaching verdict

Published May 29, 2024
The writer is an attorney teaching constitutional law and political philosophy
The writer is an attorney teaching constitutional law and political philosophy

THE case against former US president Donald Trump is set to conclude soon. Once closing arguments by both sides have been presented the case will be handed to the 12-member Manhattan jury who will decide if Trump is guilty of the 34 charges of falsification of business records. These deceptions revolve around allegations of Trump ordering his attorney to pay hush money to Stormy Daniels in exchange for her silence about her sexual encounter with the former president. If Trump is found guilty, he will become the first former US president to become a convicted felon. He will also become the first American to run for president as a felon. Because this is a criminal case, it is possible (though unlikely) that Trump will go to jail.

As is well known, this is just one of the many cases that have been filed against the former president since the last election. Many would have imagined that another case, such as the one which involves direct election interference, and that has been filed by district attorney Fani Willis in Georgia, would have been the one that would have gone to trial and produced a verdict prior to the election.

Other charges involving Trump’s incitement to insurrection also have a greater bearing on his actual conduct and the events of Jan 6, 2021. Relative to those cases, this one is less serious since the falsification of business records while a criminal offence is hardly as serious as asking someone to alter election results by ‘finding’ votes.

However, at the end of the day, a felon is a felon, and a felon is what Donald Trump will be if the jury of 12 New Yorkers decides that the prosecution has met its burden of proof and shown beyond reasonable doubt that the former president did, in fact, order his attorney to pay hush money to Daniels and then lied about it on his business records. The prosecution’s main witnesses, Stormy Daniels herself and the attorney Michael Cohen, performed well on the witness stand. While the defence was able to poke some holes into the credibility of attorney Michael Cohen, it is unclear if this helped, because the fact that a shady character like Cohen would be Trump’s attorney boosts the perception that Trump was doing shady things. Similarly, Daniels was able to hold her own on the stand despite protracted efforts by Trump’s attorneys to highlight her work in the sex industry as the basis for her lack of credibility.

Some may see voting for a convicted felon as something they simply cannot do.

Then there is the jury. Following threats from Trump supporters and others during jury selection, many were deterred from serving on the panel. Some selected jurors asked to be excused after people, likely Trump supporters, found all their personal information, including home addresses and telephone numbers, and released it on the web. It goes without saying that the 12 people and the two alternats that have agreed to serve on the jury are a gutsy bunch. In general, Manhattan, from where they have been selected, is a Democratic stronghold, where people have above-average education and are likely to dislike Trump and his politics. If this holds true, it is quite likely that Trump will be found guilty.

At the same time, during jury selection, the defence was able to get in older and seemingly more conservative jurors on the panel. The defence’s hope and that of most Trump supporters is that one of them will refuse to accede to a unanimous verdict. In the US, if a unanimous verdict cannot be reached, then there is a hung jury. This means that the case has to be tried again. Whether or not this will happen depends not only on the defence’s calculations (regarding the allegedly conservative and possibly pro-Trump jurors) being correct but also whether a juror can hold their own against the pressure of 11 other people persuading them to change their mind. Jury rooms are high-pressure environments, and, in most cases, it is true that hold-out jurors are convinced into changing their minds and going along with the majority. At the same time, this is no ordinary defendant, nor is this an ordinary case.

As far as the impact of a guilty verdict on the upcoming US presidential election is concerned, matters are largely unclear. It has been said that Trump, who is also rumoured to have been falling asleep during the five-week trial, has been unhappy that more of his supporters have not shown up to protest outside the courtroom. This could be because Manhattan is just very far from red state Trump country: in these parts, it does not matter whether or not Trump is convicted; he will win there regardless. The battle is likely to be fought in swing states, where suburban middle-class voters may see voting for a convicted felon as something they simply cannot bring themselves to do. At the same time, it is possible that the high cost of groceries and continuing inflation has so turned American voters away from President Joe Biden that they will hold their nose and vote for a criminal anyway.

All of this prompts the question of whether it is ever worthwhile to try former presidents for anything; the taint of the proceedings being politically motivated reduces the credibility and legitimacy of convictions and ends up bolstering the former leader’s popularity. Others would argue that there are gradations in culpability and voters can see the difference between someone like Trump who appears to have been underhanded and self-enriching in every dealing, and someone else who has been indicted simply because they failed to fulfil some detailed protocol or procedure. In the US, this will be the moment where such questions are pondered, if not solved.

The writer is an attorney teaching constitutional law and political philosophy.

rafia.zakaria@gmail.com

Published in Dawn, May 29th, 2024

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