The First Trump Criminal Trial Starts Monday. The Stakes Are So Much Bigger Than a Payment to a Porn Actor.

On Monday the New York County Supreme Court in lower Manhattan becomes the site of history: The first criminal trial against a former U.S. president will get underway with the start of jury selection in People of the State of New York v. Donald J. Trump.

The defendant is now, for the third time, the presumptive Republican nominee for president and leading head-to-head polling against the current president. He is also promising to end American democracy as we know it if he is elected. The stakes seem impossibly high.

At the same time, fate—or, more specifically, Trump-appointed judges—have conspired to delay all the other criminal proceedings against Trump. Which means that the most frivolous of the four criminal cases will come first. And by frivolous I mean that this isn’t one of the two about the attempt to steal the 2020 election, nor is it the one about the alleged attempts to illegally stash away stolen national security secrets in the chandelier-bedecked Mar-a-Lago potty. No, the first one to go is the case concerning the legality of Trump’s cover-up of a payment to keep a porn actor quiet about their alleged affair.

Although I personally find the substance of the prosecution more compelling and legally significant than lots of other observers do, it would be impossible to argue that this is a bigger deal than Trump’s efforts to steal the 2020 election, culminating in the violent effort to overthrow the government on Jan. 6, or the classified documents case. And yet, this is the case we’re getting first. What’s interesting about it is that it’s actually also about an election—and a payment meant to sway that election—which, while less serious than an insurrection, is still something that, as my colleague Mark Joseph Stern argues, materially matters to Americans as Trump tries to retake the White House once again. Which is why the stakes of this trial are much bigger than who wins the case. But let’s go through that anyway.

First, how might Trump come out of this trial with a win?

On a tactical level, he seems to be preparing a number of defenses in the hopes of persuading a juror or two to vote to acquit, either on conscience or as part of a nullification effort. If that happens, he could win a hung jury and a mistrial—a good outcome for him because it would continue to run down the clock toward the election without a single criminal conviction against him.

On the merits, Trump’s legal team will likely argue that he was the innocent victim of an extortion plot by Stormy Daniels, and that Trump’s sole motives for entering any agreement with her was to protect his wife and family, not to influence the election. Prosecutors will refute this claim by pointing to the timeline of the previous shelving of a Daniels negotiation, the release of the Access Hollywood tape, and the eventual signing of the nondisclosure agreement only on the eve of the election. Still, that’s Trump’s best factual case, and it’s been telegraphed in pretrial filings in which Trump’s attorneys sought to portray Daniels and “other women” who will testify against him as hoping “to monetize sexual assault claims against President Trump,” with the lawyers asserting that they will show Daniels’ “motive and intent to do the same through false trial testimony.” Daniels will have to take the stand and likely face Susan Necheles, an attorney with a reputation of being one of the toughest cross-examiners in New York.

Daniels won’t be the only target for Trump’s legal team either. His attorneys will have a good amount of ammunition to try to impeach Michael Cohen, who is at the center of this case in a way that even Daniels is not. To do this, Trump’s lawyers will likely claim that Cohen is a convicted perjurer and tax cheat who has refused to own up to his crimes in other court proceedings. Necheles’ advantage is that this is true. In response, the prosecution will attempt to use the documentary evidence—business ledgers, signed checks, tax documents—to show that, whatever his previous level of truthfulness, Cohen is describing the crime accurately. It’s not hopeless: Cohen was already recently seen as a credible witness in the civil fraud case Trump lost. In that case, Justice Arthur Engoron acknowledged, “A less-forgiving factfinder … might not have believed a single word of a convicted perjurer.” Ultimately, though, he “did not believe that pleading guilty to perjury means that you can never tell the truth. Michael Cohen told the truth.” Cohen and Manhattan District Attorney Alvin Bragg, the prosecutor in this case, need to hope that this jury views Cohen and the evidence similarly.

So Trump also wins if he convinces a jury that he did this only to spare Melania’s feelings, or if he parlays his former fixer’s lying into something that sinks the case, again by winning a hung jury and mistrial that further delays justice.

How does Bragg win? First, let’s be very clear about what he is trying to do. Despite the historic nature of this trial, it is not Bragg’s job to bring down Donald Trump the politician. His job is to prosecute crimes and get cases to trial in a timely fashion (which he’s achieved in this case) and to win convictions against people who have committed those crimes. So, Bragg needs to convince 12 Manhattan jurors that Trump attempted to illegally influence the 2016 election—a race he won by the slimmest possible margin—when he paid off Daniels on the eve of that vote, and that Trump then falsified his own business documents to cover his tracks. That’s it. If Bragg can do that, Trump will head into the next election a convicted felon facing a possible prison sentence.

Bragg’s job is not to persuade voters away from reelecting Trump in 2024, or to save American democracy. That’s never been the job of any of these prosecutors. Rather, they have been tasked with exposing Trump’s corruption and trying him before a jury of his peers. Bragg will be the first of any of them to actually achieve that.

And in some ways, he is already ahead. A conviction in this case will demonstrate something to Americans that we’ve not yet seen: No one, not even Donald Trump, is above the law. But to some extent, just holding the trial is a signal that if you commit a crime in this country, no matter how much wealth and power you have, you will face the same system of justice as the rest of us. It will show, contrary to how many of us have experienced the past nine years of American political life, that Trump is not on some special plane, untouchable by the same laws that maintain order among and for the rest of us. Specifically, Trump cannot hire a fixer (Cohen) to pay off a woman whom he had an affair with in order to keep it secret from the American public and win an election, then watch the fixer suffer all the consequences—including years of prison and house arrest—without any ill befalling Trump himself.

That’s how Bragg wins. He shows that Trump is no more able to break the law and get away with it than Cohen, or any of us. Whether our political system still works is a completely separate question from how Alvin Bragg can win. Because what happens afterward—and whether and when Trump suffers consequences if he is convicted—is entirely up to us.

If Trump is convicted, he’ll face the potential of a prison sentence or, more likely, home confinement. If he manages to reclaim the presidency anyway, he will be free of those consequences for a while. But that sentence will hang over the entire course of his time in office, waiting for him at the end of his constitutionally-mandated final term.

Here is the problem: That knowledge will cause him to do whatever he can through the power of the presidency to postpone that day forever. Whether that means attempting to hold on to the office past the expiration of his term, or seeking to destroy his enemies in New York in other ways that prevent them from enforcing judgment on him, the country will be plummeted into a crisis. We may not escape with our democracy intact. That danger itself—that of Trump actually becoming the dictator he claims he wants to be, with all that that entails, so that he can once again escape consequences at any cost—will be what awaits us on the other side of this.

In that way, the stakes of this little old case about the hush money payments could actually not be any higher.