On Day One, Judge Merchan Sets the Tone

Before jury selection, we learned a lot about the contours of the case

I feel as if I won the lottery.

Through a combination of advance planning (rare for me, as my family will tell you), luck, and a friendly court official who said he likes to read me, I snagged a seat for the historic Trump Hush Money trial. 

With no audio or video feeds available, I’m one of a few dozen reporters who are essentially sending messages in a bottle to the rest of the world. The only difference between covering this and the last time a former president or vice-president was criminally tried — Aaron Burr’s 1806 treason trial — is that we get to use laptops (though no cell phones) in the decrepit courtroom. 

For a week or so, almost all of us (except for five “pool” reporters) have to leave the courtroom and sit in “Overflow Room 1523.” The explanation is simple. The seats we had for pretrial motions and will soon have again for opening arguments and the rest of the trial are needed now for prospective jurors. From the overflow room, we can see the judge, the lawyers, and Trump but not the potential jurors, though we can hear them. That’s just one of the extraordinary measures taken to protect their identities, for obvious reasons.

Day One did not disappoint, as Judge Juan Merchan set the tone for the trial, which can basically be summed up as: This court is not going to take any shit from Donald Trump.

The judge is terrific. As I wrote in one of my short dispatches from the courtroom for The New York Times Opinion section, he reminds me of the old deodorant ad for Ice Blue Secret— “cool, calm and collected.”

Judge Juan Merchan in his office, March 15, 2024 (AP)

Merchan first addressed the repeated defense motions that he recuse himself. I want to dwell on this and other less-covered moments on Day One in part because they reflect the overall approach of Trump’s lawyers, who are doing everything they can to get a conviction overturned on appeal. But Todd Blanche, Trump’s smart if inexperienced lead attorney (he has only tried two cases for the defense and has little experience in state court), is crossing the line into frivolous motions and re-litigating issues the judge has already ruled on. I’m told by a couple of Trump’s former lawyers that this maximalist strategy will be pursued throughout the trial at the defendant’s insistence and to the annoyance of the judge and the rest of us.

Todd Blanche speaks to the members of the media as he leaves the courthouse in Manhattan, New York, on April 4, 2024

The defense charged that Judge Merchan had done media interviews that were prejudicial. As the judge said in his own defense, he was merely quoted as saying of his overall approach to his job: “Preparing for court is intense. There’s no agenda here. We want justice to be done.”

In his arch, understated way, he added, “Those were the allegedly offensive statements.”

Trump's lawyers went on to argue that Merchan should recuse himself because, in 2019, he was quoted as saying, “I hate that politicians use Twitter. It’s unprofessional. That’s not how politicians should behave.” 

The judge then made the obvious point that five years later, this reflected no bias in this case. Nor did the fact that a “family member” (his daughter) worked in politics. He noted for the third or fourth time that a state ethics panel had said he had no obligation to recuse himself over what his adult daughter did for a living, and the charge that she stood to benefit financially was the product of “Inference, innuendo, and unsupported speculation.”

“To say these claims are attenuated is an understatement,” he noted drily.

When I first heard Judge Merchan saying Trump couldn’t be excused from court on May 17 to attend his son Barron’s high school graduation, I thought he had handed Trump a little spin victory. Maybe so. Trump whined about it after court in front of the cameras. But now the courthouse rumor mill is aflame over whether Trump skipped Don Jr.’s, Eric’s, Ivanka’s, and Tiffany’s graduations. The betting is that he went to Ivanka’s from Choate but not the others.

Similarly, Judge Merchan agreed that a Supreme Court case is “a big deal,” but he said this trial is “a big deal, too,” and he didn’t excuse Trump from court on April 27 to attend SCOTUS oral arguments on his immunity appeal. He told Trump that the jurors were going to be in court, and so he must be, too.

When the defense complained about the juror questionnaire, Merchan replied evenly that this is the “most exhaustive questionnaire this court has ever used.”

Later, we got a tantalizing preview of how “catch and kill” worked. Apparently, one of Trump’s most important jobs as a candidate was to be a tabloid news editor. Exhibits of stories depicting Ben Carson (later Trump’s housing secretary) as an incompetent surgeon; Ted Cruz (later a Trump butt-kisser) as guilty of infidelity and, infamously, with a father implicated in the Kennedy assassination; and Marco Rubio (another one now bending to the autocrat) as connected to drug abuse and a sex scandal, will be admissible, in part because of evidence that ”many were shown to Trump before they were published to approve or reject.”

Stories about Dr. Ben Carson,Sen. Ted Cruz, Sen. Marco Rubio were shown to Trump before they were published to approve or reject

To show he was being fair and to protect against reversals by a higher court, Merchan sided a couple of times with the defense. He refused to allow reference to the three women who, in October of 2016, alleged that Trump had sexually assaulted them, which he described as “hearsay” and “just a rumor, gossip.” He reiterated his ban on playing the Access Hollywood tapes in court, though he will allow the transcript to be included. This will, in the words of prosecutor Joshua Steinglass, respect the court’s desire to strike a balance “without unduly sanitizing the defendant’s words.” As the judge explained, “You can bring out what was said in the tape. What I didn’t want to bring out was this in Mr. Trump’s voice.” 

This sounded to me like a judge who did not want to hear the former president and soon-to-be Republican nominee for president using the word “pussy” on tape in his courtroom.

In a new ruling, he refused to let the prosecution refer to the fact that Melania was pregnant and gave birth to Barron while Trump was what you could call a double-cheater, having sex with Stephanie Clifford (Stormy Daniels) while still having a months-long affair with Karen McDougal, the former Playboy Playmate of the Year, who will testify for the prosecution.

Day One laid the groundwork for Michael Cohen's key testimony. The defense didn’t want to allow him to testify about his conviction for violating federal campaign finance laws. The judge said he would be allowed to do so but hinted he would instruct the jury not to assume Trump was also guilty of these federal charges. For still unexplained reasons, the Justice Department decided within days of Joe Biden taking office (before Merrick Garland arrived as attorney general) not to prosecute Trump as they had Cohen.

Blanche argued strenuously that all of the voluminous evidence of Trump trying to intimidate Cohen out of testifying against him — and his continued attacks on him — should be excluded. The defense doesn’t want the jury to know that one of the reasons Cohen lied was out of fear of being a “rat” (Trump’s mobster word for him after he flipped). The DA argued that Trump’s attitude toward Cohen before and after he flipped — and his threatening social media posts (“unlike Michael Cohen, he refused to break,” he said of Paul Manafort in 2018 )— go directly to “consciousness of guilt.” As does Trump referring to Cohen as “death.”

Judge Merchan rejected almost all of the defense’s efforts to restrict Cohen’s testimony and gave us a glimpse of what his attitude will be at the April 23 hearing on the DA’s motion to hold Trump in contempt and fine him $3,000 for social media posts attacking Cohen and Clifford in violation of the gag order. While we don’t know if he’ll hold Trump in contempt, we do know that he will reject his argument that he is simply exercising his First Amendment right to retaliate against Cohen for criticizing him. 

Jurors will likely see a blow-up of Trump’s all-caps Truth Social post: ‘IF YOU GO AFTER ME, I’M COMING AFTER YOU.” And they will likely hear that just eight days after he was indicted in this case, Trump announced that he would sue Cohen for $500 million. He dropped the suit because of everything that would come out in discovery, but the prosecution will argue that the punitive suit shows “his willingness to go after those who have defied him.” 

As Maggie Haberman first glimpsed,  a clearly dispirited Trump fell asleep in court on Day One. I’ll report tomorrow on whether he manages to stay awake during jury selection.

Pic of the day:

My perimeter press pass wrongly labeled with “Trump Trial.” The pass issued to most others doesn’t include this, which could render it a Honus Wagner baseball card.