Day Four: Judge Tells Ex-President to Sit Down

If Trump decides to testify, he’ll likely have a lot of lies beyond this case to answer for

The morning session on Day Four offered one last chance to hear the voices of the prospective jurors who hold Donald Trump’s fate in their hands. This was jury selection for alternates, but with three seated jurors already excused (two because of the pressure, one dismissed by the judge for lying on the questionnaire), the six alternates are important, even in a short trial. One or more could easily end up on the jury. 

Then, in the afternoon, the lawyers argued over so-called Sandoval rules. This sounds down in the weeds, but determining what Trump can be questioned about if he’s foolish enough to take the stand could prove highly significant.

Finally, except for a handful of pool reporters, this was our first chance to see Trump in the flesh since pre-trial motions in late March. And while I cannot report hearing or smelling him cut the cheese —the big question on social media — he looked haggard and extremely unhappy. For the first time in his life, he’s had to sit down and shut up while listening to ordinary people savage him.

The day began with Trump’s typical nonsensical blather. With his hair uncharacteristically messy thanks to the wind outside, he told reporters, “They’ve taken away my constitutional rights to speak, and that includes speaking to you.” This was delivered with no sense of irony because he has none.

Inside the courtroom, prosecutors and defense lawyers questioned 22 prospective jurors.

• The first prospective juror began the morning session by explaining that the case was causing her to suffer anxiety attacks, and the judge excused her.

• Two more were excused after saying they could not be fair and impartial, though others seemed eager to serve, with one saying he didn’t need to be home until 9:00 p.m. 

• Several potential jurors grew emotional in the jury box, a reminder of the different life experiences they bring into the courtroom.

• One woman’s voice cracked as she described being convicted of a drug-related crime in a different state. “Please be kind to this person,” the judge advised the press before dismissing her.

• “This is so much more stressful than I thought it was going to be,” another confessed before being excused.

• A third cried, “I feel so nervous and anxious right now. I’m sorry,” then burst into tears.

As we saw on Monday, Trump intermittently snoozed, with his head drooping a couple of times. But he seemed awake enough when prospective jurors unloaded on him, either directly or through old social media posts read aloud by his own attorneys when arguing for the judge to dismiss them.

All morning, the insults kept coming. None were as classic as Thursday’s “I wouldn’t believe Donald Trump if they notarized his tongue,” but they’ll do:

“I never read any of your books.”

“[He gives people] permission to act on their negative impulse.”

“Egomaniac, sociopathic incompetence.”

 “I do believe that he was the devil.”

The prospective jurors who said these things at some point in their lives didn’t make it onto the jury. But Trump had to sit there and take it. As I wrote in The New York Times, he was trapped, unable to use his remote to change the channel to Fox News.

With all the alternates selected, the court recessed. I went down from the 15th floor and left the building to eat my brown bag lunch. The police officers outside seemed even more jumpy than usual. It turned out that four minutes earlier, a mentally ill Florida man had self-immolated in a small park just across the street and about 25 yards beyond the long row of camera positions. A few TV reporters were on the air talking about the morning session. They were facing the park and had to look away from the flames— live.

I arrived after police had extinguished the fire and rushed the victim to the hospital, where he wasn’t expected to make it, but in time to see the smoldering pile and to interview a distraught close-up eyewitness. He described what happened while refusing to be videotaped or have his picture taken. Someone showed me a photo of one of the man’s handbills, full of well-typed, grammatical conspiracy theories about cryptocurrency, NYU, David Boies, and James L. Brooks, and I learned that he carried a placard claiming Biden and Trump were in cahoots. I glanced at the cell phone video of the self-immolation but couldn’t watch it. Another reporter told me that when the wind shifted, you could still smell the burning human flesh. I could not.

I went back upstairs to take refuge in the courtroom, where — with jury selection completed — those of us with special credentials were now allowed sit. (Most have to settle for the overflow room). NYPD officers sternly warned us that we would be ejected — possibly for good — if we took out our cell phones. No photos are allowed there (or anywhere on the 15th Floor) except by a tiny pool of credentialed photographers occasionally given a very brief photo “spray” of Trump. Some reporters risk using their cell phones in the bathroom, with one even filing a live radio report from a stall, though he neglected to acknowledge his location.

The afternoon began with a typical Trump delaying tactic. In March, defense lawyers had argued that the trial needed to be delayed so they could review tens of thousands of documents from the U.S. Attorney’s office. The judge ruled that if they had wanted those largely irrelevant documents, they could have requested them earlier. Now Emil Bove, one of Trump’s attorneys, asked that the prosecution redact non-relevant private information from tens of thousands of pages of documents before they were entered as exhibits.

Prosecutor Susan Hoffinger noted that this would be “extremely burdensome.” For example, Michael Cohen had 39,000 contacts on his phone.

The judge told Bove to sit down before ruling against him: “If you have something you believe [should not be seen], you can bring it to my attention.”

When they moved to the Sandoval hearing over what Trump can be asked on cross-examination if he testifies, things went no better for him. Bove tried to argue that Judge Arthur Engoron’s summary judgment in the civil case against the Trump Organization was inadmissible. The prosecution’s Michael Colangelo replied that asking Trump on the stand whether his company had been found guilty of fraud is a perfectly reasonable question, as is confronting him with Engoron’s ruling that as "the trier of fact, I find [Trump's] testimony rings hollow and untrue." 

Merchan again seemed to side with the prosecution, “If asked, ‘Were you convicted of a felony for burglary in 2017?’ the answer is either yes or no,” the judge said, indicating where he will likely go when he issues his Sandoval rulings on Monday. 

Prosecutors also want to cross-examine Trump on his defamation of E. Jean Carroll, his lawsuit —dismissed as “frivolous” — against Hillary Clinton in Florida, and about being rebuked from the bench for “breaching his fiduciary responsibilities” in allowing $2.8 million to be diverted from the now-defunct Trump Foundation to his campaign.

Finally, prosecutors want to bring up that Trump testified that his longtime CFO Allen Weisselberg went rogue when he took illegal and unreported gifts from the company (Weisselberg remains so loyal that he’s currently on Riker’s Island), but a judge found that Trump knew about it beforehand. Natch.

By the end of the day, Merchan was out of patience. When the defense tried to argue that even a transcript of the Access Hollywood tape was inadmissible, the judge sharply reminded them that he had clearly ruled that while he would not allow the “salacious” tape itself to be played — too “prejudicial” —the transcript was fair game. “The defense is targeting my decisions one by one by one,” he said. “That has to end… There comes a point where you have to accept my rulings. There’s nothing else to clarify. Nothing else to argue. We are starting this trial Monday morning.”

Trump thought that was his cue to leave. But when he stood up, the judge said: “Sir, would you please have a seat.” The former president meekly sat down like the obedient little boy he never was. This sent a strong signal. Inside his courtroom, Juan Merchan has all the power, and Donald Trump better get used to it.