Can Americans trust a verdict in Donald Trump's hush-money case? Will they? | Mike Kelly

Late in the afternoon of the first day of Donald Trump’s hush-money criminal trial in New York City this week, America was confronted with the central problem of this case.

At issue wasn’t Trump’s habit of testing a judge’s gag order that supposedly prohibits the former president from belittling prospective witnesses. The concern wasn’t even the question of whether the charges in this trial are too petty.

No, the emerging central problem with Trump’s trial — for prosecutors, defense attorneys, and even the judge and jurors — is far more basic.

Can any court in America conduct a fair trial, with a believable and trusted verdict, of one of the nation’s most recognizable people, who is despised and loved by nearly equal parts of the population?

Put another way: Trump is not the only defendant in this case. America’s system of justice is on trial, too.

How will the verdict in Trump's trial resonate across America?

It was just after 2:30 p.m. on that first day when 96 prospective jurors were ushered into a courtroom on the 15th floor of the massive New York State Supreme Court building in lower Manhattan.

All morning and into the early afternoon, prosecutors and defense lawyers — with Trump sitting with them — argued back and forth over a series of pretrial motions. But now, with jurors in the courtroom, the real meat-and-potatoes of the trial was about to be served up in the kind of procedure that takes place each day in hundreds of courtrooms across the United States.

Trump would be judged by a jury of ordinary citizens. And the process of choosing that jury was about to begin.

Befitting the nature of the case and the man at the center, Trump’s trial, of course, differed from most others in one respect. It was bigger. Far more prospective jurors were summoned than in a normal case.

But the process of picking the jury was no different from that of a small courtroom in, say, South Dakota or Vermont or Illinois. From this first group of 96 New Yorkers — and with another 400 or so waiting in nearby rooms in case they were needed — the judge, prosecutors and defense lawyers had to pick 12 jurors and six alternates.

The initial batch settled into courtroom benches. Judge Juan Merchan, who is presiding over the trial, welcomed them and explained the basics of the case known as People of the State of New York versus Donald J. Trump.

Then the judge asked jurors what amounts to the most basic question at the heart of America’s judicial system: Can you be impartial?

What happened next tells us much about why this trial is so controversial.

Fifty prospective jurors answered “no.”  They could not render an impartial verdict. They had already formed strong opinions — pro and con — about Trump.

Merchan excused them. No surprise there. Judges make that sort of decision in most cases — but rarely with more than half of the prospective jurors.

More questions were asked of the remaining jurors. And after several days, a jury began to take shape. Merchan even signaled to prosecutors and defense attorneys that opening statements could come as early as Monday.

But the rejections of more than half of the initial segment of the jury pool over the question of basic fairness underscores an elusive element of this trial. No matter how Trump is judged, how will the verdict resonate across America? Will a majority of Americans trust this case as a fair exercise of justice? Will they even believe it? Resist it? Embrace it? Ignore it?

Those same questions emerged three decades ago in the wake of the trial of O.J. Simpson, the former football star and television personality who was acquitted of murdering his wife and another man.

The evidence of Simpson’s guilt seemed convincing — at least to much of white America. Simpson even tried to escape, a move that is often seen as a sign of guilt. Remember cops chasing that white Ford Bronco down that California highway?

A far different view of the case emerged among African Americans. Many Black people and other non-whites viewed Simpson as an unfair target of a biased police and court system. Why wouldn’t he try to escape?

And so, as the verdict after the long trial was announced, cheering erupted in Black communities and disdain was the reaction among whites. The moment reminded us — again — of the deep racial divisions that existed in America.

On the day of the verdict, I deliberately made my way to a store at a mall in northern New Jersey that sold televisions to write a column.

What I found was a diverse crowd of several dozen people gathering before a bank of TVs, all of them tuned to the Los Angeles courtroom where Simpson had been on trial.  As the verdict was announced, Black and non-white viewers smiled, cheered and clapped. Whites shook their heads and walked away in silence.

More Mike Kelly: The first criminal trial of a former president begins: How did Trump react?

How can any verdict in Trump's trial be trusted?

I wonder now if America will face a similar scene in the coming months with Trump’s trial.

This first Trump case — the so-called “hush-money” trial — begins with an entirely legal decision by Trump to pay $130,000 to a former female porn star to keep silent after she threatened on the eve of the 2016 presidential election to publicly speak about her alleged extramarital sexual tryst with him years before.

Trump has since denied that he had an affair with the porn actress, known as Stormy Daniels. But he paid her anyway — a decision that is perfectly legal. Hush money is not a crime. Nor is an extramarital affair.

But what happened next is why Trump is now on trial.

First, Trump allegedly doctored his financial records, claiming that the $130,000 was a “legal expense” because it reimbursed his attorney, who actually paid the hush money to Daniels.

Injecting falsehoods into business records is illegal in New York State. But it’s only a misdemeanor.

The problem for Trump is that the payments were made in the final weeks of his 2016 presidential campaign. Prosecutors say Trump feared that the story of his affair with Daniels might cause voters — especially women — to reject him. As a result, prosecutors say, Trump violated election finance laws that require candidates to accurately report any expenditures related to a campaign, including what sort of message a candidate is trying to control.

As a result, the 34 charges against Trump in this trial were upgraded to felonies. Or as prosecutors explained, Trump allegedly doctored his financial records — a misdemeanor — as a cover-up for a much larger and far more serious set of crimes that may also include tax fraud.

If convicted on all charges, Trump could face a maximum sentence of four years in prison.

So let’s be clear: This is no minor trial.

But already, Trump supporters — led by the former president himself in almost every public statement these days — claim that the charges are not only petty but an unfair stretching of legal principles.

Many ask whether it was proper for prosecutors to take a relatively low-level misdemeanor case of doctoring financial records and turn it into a major felony investigation — when it was a result of trying to hide the alleged tawdry story of Trump cheating on his wife. At the same time, however, many say prosecutors were entirely right to target Trump. The manipulation of financial records is a serious crime, they say. It is often a sly technique used by criminals to cover up serious financial felonies, including tax fraud and election finance violations.

Both points of view are certainly fair to debate. But with Trump at the center of this controversy now, the mere discussion of such legal differences reveals deep divisions across America.

Last week, a nationwide survey by the Associated Press and the NORC Center for Public Affairs Research at the University of Chicago found that only 35% of Americans felt Trump committed a crime in the hush-money payouts. Another 31% felt Trump acted unethically but not illegally, and 14% said he did nothing wrong.

With such feelings already baked into the American psyche, how can any verdict in this trial be trusted?

Such a question is entirely fair now — for supporters and for critics of Trump.

If Trump is convicted — and the evidence against him seems strong — will his supporters see him as a victim and a new embodiment of O.J. Simpson? If Trump is found not guilty or the jury is so divided that it can’t reach a verdict and Merchan declares a mistrial, how does this affect the question of whether Trump can ever be held accountable for anything he has been accused of?

On Tuesday, during a discussion with Trump’s lead defense attorney, Todd Blanche, over the fairness of prospective jurors, Merchan tried to address such concerns. "The question is not whether someone agrees with your client politically or not” Merchan said to Blanche. “The question is whether or not they can be fair and impartial.”

Merchan did not offer an answer on how he can detect whether a juror can be “fair and impartial.” How could he?  As numerous surveys have reminded us, people’s feelings about Trump — pro and con — reflect a wide arc of American issues, from deep cultural disputes over abortion and guns to how we educate our kids and whether we believe that our best scientists produced effective vaccines to fight the COVID-19 pandemic. And those are only a few areas of dispute.

But those feelings also tell us we are deeply divided. And while Trump has contributed to those divisions, he’s not the only cause.

On Tuesday, Merchan found himself questioning a prospective juror about the 2020 presidential election, which highlighted many of America’s political fissures, not just in how people voted but in what they believed the results showed. The juror — a woman — acknowledged that Trump was a source of much of the national divide. But it was much more complicated, she said.

"There was a divide in the country, and I can’t ignore that," she said. "However, I never equated that to one individual.”

The question now is whether that national divide will find a way into that courtroom in lower Manhattan — and perhaps into the jury.

Mike Kelly is an award-winning columnist for NorthJersey.com, part of the USA TODAY Network, as well as the author of three critically acclaimed nonfiction books and a podcast and documentary film producer. To get unlimited access to his insightful thoughts on how we live life in the Northeast, please subscribe or activate your digital account today.

Email: kellym@northjersey.com

This article originally appeared on NorthJersey.com: Donald Trump trial: Can verdict be trusted by Americans?