Twelve New Yorkers will soon be charged with a task unique to history.
They will weigh whether to convict Donald Trump, a former president and current presumptive GOP nominee, creating a scenario in which a felon could be elected to the White House.
All 12 of them have to land on the same decision for each of the 34 counts Trump faces — otherwise the case ends in a mistrial.
What they’ll determine is anyone’s guess.
“Anybody who claims they know what a jury is going to do or how long it’s going to take is either lying to you, lying to themselves or much smarter than anybody I’ve ever met,” said Mitchell Epner, a former New York federal prosecutor now at Kudman Trachten Aloe Posner LLP.
The case against Trump jurors will begin deliberating this week centers not on Trump’s latest bid for president, but his 2016 campaign. He is charged with falsifying business records to conceal a hush-money payment to a porn star in the weeks before voters that year would decide whether to elect him. They ended up handing him a stunning win.
Prosecutors say Trump directed his allies to quell bad press at all costs — the payment was made in order to keep the story from becoming public — because just one more scandal could upend his presidential aspirations. But defense attorneys contend Trump maintained a degree of separation from his allies working to launch him to the nation’s highest office, unaware of any unlawful schemes they engaged in to get him there.
After more than four weeks of testimony in Trump’s criminal trial, from 22 witnesses who once made up his innermost circle, the former president’s jury is expected to start weighing his innocence this week after closing arguments conclude Tuesday.
Trump’s jury is a melting pot of Manhattanites — from a physical therapist to investment bankers and immigrants to lifelong New Yorkers.
They were selected to hear Trump’s case over the course of four days in April, a process complicated by his controversial political reputation, deep ties to New York City and intense media coverage.
Between the seven men and five women on the jury, most are college-educated and follow a myriad of news outlets. Notably, two jurors are themselves lawyers.
Though having lawyers on the panel might seem ideal in a case as complicated and high-stakes as Trump’s, it could prove to be a “double-edged sword,” said Jeremy Saland, a former Manhattan prosecutor.
“You don’t want the lawyer, who may be educated and understand the law, to impose for their own use of the law or reading of the law or understanding of the law on the rest of the jury,” Saland said. “And even if it’s not intentional, you don’t want the jury to rely on that lawyer to say, ‘Oh, okay, that’s what it means.’ Or, ‘Oh, thanks for explaining that area of law.’”
“Even if it’s not intentional, you don’t want to give too much heft or weight; they are just as equal,” he continued. “This isn’t an Orwellian novel — you know, ‘all jurors are equal, and some jurors are more equal than others.’”
Once the jury retires to deliberation, lawyers serving among the 12 have equal chance of helping or hindering prosecutors in the Manhattan district attorney’s case, said Loyola Marymount University law professor Jessica Levinson.
Prosecutors may be hoping the lawyer-jurors will act as their “teaching assistants” inside the deliberation room, Levinson said, walking jurors through several complicated steps to determine whether to convict Trump on what amounts to complicated campaign finance violations.
However, they could just as easily point to the numerous elements jurors must unanimously agree upon to find Trump guilty and suggest that, if they fail to concur on just one, “the whole thing breaks apart,” she said.
There are several looming questions jurors must answer that could make or break the case.
When the National Enquirer and its then-publisher, David Pecker, buried negative stories about Trump and highlighted bad news about his 2016 opponents, did they act in the interest of selling magazines or clearing Trump’s path to the White House?
Was porn actress Stormy Daniels’s detailed testimony about an alleged sexual encounter with Trump unnecessary in a case about falsifying business records — or did it prove that Trump had something to hide from voters?
And perhaps most pertinent of all: Is Michael Cohen credible?
As Trump’s ex-fixer who paid to keep Daniels quiet and coordinated other hush-money deals, Cohen was the district attorney’s star witness and the last to take the stand in his case-in-chief.
Before jurors ever met Cohen, they were warned by prosecutors he has “some baggage.”
Numerous witnesses called Cohen a “jerk,” an “asshole” and challenging to work with — to the point that some sought to actively avoid him. The onetime personal attorney to Trump also pleaded guilty to federal campaign finance and other charges in connection with the plot in which Trump is now charged.
Despite that, Cohen provided some of the most damning testimony against Trump.
He confirmed the 11 invoices he submitted to Trump, which underpin 11 of the charges the former president faces, were false records. He said that the $35,000 Trump paid him each month in 2017 was for “minimal” work for his then boss, undercutting defense arguments that those checks, from which another 11 Trump charges emerge, were a legal retainer.
And, he spoke to the greater conspiracy of election influence that prosecutors aim to convince the jury took place, confirming he paid Daniels $130,000 for her silence and coordinated two other deals — at Trump’s direction.
“There are things that you just have to take Michael Cohen’s word for,” Epner said of the state’s case, though he noted extensive corroboration in many instances. “The most important is Michael Cohen is the only person — our only source of direct evidence — that Donald Trump ever heard the particulars for how this reimbursement scheme was going to work.”
“And if Donald Trump didn’t hear that and agree to that, he’s not guilty,” he added.
Over three days of cross-examination, defense attorneys ripped Cohen as a liar whose hush-money deals were a rogue operation to which Trump was not privy. He admitted under cross-examination to stealing from the Trump Organization and to posting repeated condemnations of his ex-client online, including as the trial was ongoing.
With Cohen’s credibility in dispute, the jury’s perception of his testimony is a wild card — a risky position for prosecutors, whose case is significantly strengthened by the ex-fixer’s assertions.
“A lot of this is going to be directly and indirectly on the shoulders of Michael Cohen,” Saland said. “[Jurors] are going to have to say, ‘Well, you know what? I don’t like Michael Cohen. He’s a conniving, lying, disreputable, selfish, revenge-driven little man. But at the same time, I can understand where he’s coming from.’”
But defense attorneys may have their own credibility issues with which the jury must reckon.
Their primary witness was Robert Costello, a lawyer who once advised Cohen and acted as a go-between for Trump’s White House and his then-exiled fixer who was under federal investigation at the time.
While Costello refuted Cohen’s testimony that a “pressure campaign” was mounted against him, he groaned and groused at Judge Juan Merchan during his time on the stand — causing the judge to admonish Costello — and clear his courtroom.
Legal experts agreed that jurors trust a judge more than anyone else in the courtroom.
“The jury is looking to the judge for keys and clues about what’s credible and what’s problematic,” Levinson said. “And when they see a witness having a kind of adult tantrum and then the judge clears the room — that’s a really important message to them.”
Once the jury receives the case, they could deliver a verdict at any time.
If the jury finds Trump guilty, he will become the first U.S. president convicted of a crime — and the first felon with a major political party’s presumed nomination. If they acquit him, he will have accomplished another skirting of the law.
Saland said it would be “naive” to think the magnitude of the jury’s historic decision won’t impact deliberations.
“Whether or not you think it’s a foolish prosecution, a meritless prosecution or political prosecution — or born from absolute justice and a necessary prosecution — it doesn’t matter,” he said. “Because if you’re sitting in that jury room, no matter what you do or say, no matter what your outcome, it is going to have a ripple effect of magnitude potentially that we can’t right now really contemplate.”