Former U.S. president Donald Trump sits in court in New York on May 14.Curtis Means/Reuters
A gag order. The House Speaker turning up outside court. Angry denouncements of the judge overseeing the case.
Some of the most explosive moments in Donald Trump’s hush money trial have played out for most of the world to see – except for the people who are actually deciding his fate: the jury.
The 12-person panel is shown evidence and witness testimony so they can decide whether the former president is guilty of a scheme to buy up and bury seamy stories in an effort to illegally influence the 2016 presidential election. But it’s a highly curated experience; jurors are not getting the full picture seen by those who follow along each day.
They don’t even witness Trump enter or exit the courtroom. He’s already there by the time they are brought into the room, and he stays until they are dismissed.
This is by design. Laws carefully govern how a criminal case is tried to ensure that a jury’s decision on guilt or innocence isn’t affected by fights over evidence or other legal sparring. It’s routine to hold back a jury while trial lawyers argue with the judge about what can and can’t be included for jurors to see during the trial. And attorneys often gather quietly at the judge’s bench to talk about sensitive topics, out of their earshot.
Jurors, too, agree to a set of rules when they’re chosen for a trial. They can’t research the case. They must avoid all news about it. They also agree not to discuss the case outside of court and not talk about it among themselves until deliberations, when all the evidence has been presented and they’re deciding whether the defendant should be convicted. If they break any of these rules, they could be kicked off the panel and replaced with an alternate juror, or a mistrial could be declared.
So if they’re taking their civic duty seriously, the Trump jury has never heard the Republican presidential candidate criticize Judge Juan M. Merchan as “totally conflicted.” They don’t know that Trump has been threatened with jail time and fined $10,000 for violating a gag order that bars him from talking about witnesses in the case, including the prosecution’s star witness, Michael Cohen. They haven’t watched Cohen’s TikTok livestreams. They didn’t see House Speaker Mike Johnson hold a press conference outside the courthouse this week, using his powerful position to show his party turning against the judicial system by declaring the Manhattan criminal trial illegitimate.
And they’re unaware of the hours of legal wrangling over what witnesses can be called to testify, and what they can say when they’re called.
Trump has pleaded not guilty to 34 counts of falsifying business records and denies any of the sexual encounters happened. Trump’s attorneys, for example, last week asked the judge to declare a mistrial over testimony from a crucial witness, Stormy Daniels, who spoke in discomfiting detail for jurors over the alleged sexual encounter with Trump that prompted the hush money payment just weeks before the presidential election in 2016. Jurors saw Daniels on the witness stand for 7.5 hours over two days.
The panel got sent home early the day Daniels finished testifying. And then Trump’s attorneys argued with the judge the case should be thrown out over her testimony. They took issue with Daniels’ testimony describing a power dynamic between her and Trump, and the visceral reaction she had when she says she saw Trump sitting on the bed of his hotel suite stripped down to his boxers and T-shirt.
“That is so prejudicial and so incredible for a jury to hear,” Trump’s attorney Todd Blanche argued. He blamed prosecutors for asking questions that elicited intimate details of the alleged encounter.
Judge Merchan refused to throw out the case.
Trump’s attorneys also wanted to modify a gag order that bars him from talking about witnesses in the case. “He needs an opportunity to respond to the American people,” Blanche argued.
Judge Merchan denied that request too. And an appeals court on Tuesday upheld the gag order; finding that Trump wasn’t claiming the restrictions infringed on his right to a fair trial. He was arguing that being prohibited from talking about the case could adversely impact his 2024 presidential campaign.
But Trump’s lawyers have won some, too. Merchan said no to prosecutors’ request to play jurors a 1999 CNN interview in which Trump discussed his familiarity with campaign finance laws. And just before court let out last Friday, Merchan told prosecutors they should inform Cohen “that the judge is asking him to refrain from making any more statements” outside court about the case or about Trump.
More routine actions are also decided outside of the watchful eyes of the jury. The judge and attorneys talk about scheduling and days off – including this Friday, when the Republican presidential nominee will be attending his son Barron’s high school graduation. And they’ve talked about potential upcoming witnesses.
Merchan asked Trump’s defence lawyer Blanche whether his client would testify. Blanche said: “No.”
“No determination yet?” Merchan clarified, according to a transcript. “No,” Blanche said.
Even before the jury was seated, Merchan made a litany of rulings on what could be brought into court, including that prosecutors could ask about the infamous “Access Hollywood” tape where Trump bragged about grabbing women’s genitals without their permission, but they couldn’t play the tape itself. He set strict ground rules for the defense’s planned expert testimony on campaign finance law. And he denied three requests by Trump’s lawyers to delay the trial.
Once all the evidence is presented and both sides rest, the judge will instruct the jury on how to begin deliberations. Only after the trial formally ends are they released from the rules, meaning they can read, watch or listen to whatever they like. And, for the first time since being sworn in, they can talk about a process no other American has ever experienced – sitting in judgment on a former president on trial for a crime.
Until then, they will be reminded by Merchan each day: “to please not talk either among yourselves or anyone else about anything related to the case.”
And, the judge says: “Please continue to keep an open mind.”