"Now's the time to cut your losses": Former Trump prosecutor outlines potential "win-win situation"

This is the second week of former president Donald Trump’s historic criminal trial in Manhattan for allegedly engaging in a hush-money scheme to conceal his adulterous relationship with adult film actress Stormy Daniels (legal scholar Norm Eisen has more accurately described this first trial as being about the crime of election interference).

Far faster than most experts expected, 12 jurors and 6 alternates were selected last week. Trump’s criminal trials are almost guaranteed to be a spectacle given his bombastic temperament, egomania and megalomania, mastery of stagecraft and propaganda, and what is in total a disagreeable personality that borders on the sociopathic if not psychopathic.

During opening statements on Monday, the prosecution succinctly summarized the case against Donald Trump. “The defendant, Donald Trump, orchestrated a criminal scheme to corrupt the 2016 presidential election,” prosecutor Matthew Colangelo said. “Then he covered up that criminal conspiracy by lying in his New York business records over and over and over again.”

“It was election fraud, pure and simple,” Colangelo told the jury.

The first witness for the prosecution, David Pecker, the former chairman of the National Enquirer’s parent company, is expected to continue to testify Tuesday about his key role in Trump’s alleged hush-money operation to pay off Stormy Daniels (and former Playboy playmate Karen McDougal) in exchange for her silence about an affair with the ex-president prior to the 2016 election. Pecker’s testimony is potentially “devasting” to Donald Trump’s defense.

Trump’s attorney Todd Blanche is presenting a defense that emphasizes his “humanity” and how, “He’s a man. He’s a husband. He’s a father. He’s a person just like you and just like me.” Trump’s attorney, as is his job, is also arguing that the corrupt ex-president broke no laws because “the 34 counts, ladies and gentlemen, are really just pieces of paper…. None of this was a crime.” Trump’s attorney also tried to convince the jury that, “There’s nothing wrong with trying to influence an election. It’s called democracy.”

In an attempt to better understand what is likely to happen next in Donald Trump’s first criminal trial, the strategies the prosecution and defense will likely use, what would happen if a so-called “Trump sleeper agent” infiltrated the jury in order to rig the outcome, and why the corrupt ex-president should take a plea deal in exchange for agreeing to drop out of the 2024 election and leaving public life, I recently spoke with Kenneth McCallion. He is a former Justice Department prosecutor who also worked for the New York attorney general’s office as a prosecutor on Trump-related racketeering cases. McCallion’s books include the companion pieces “Profiles in Courage in the Trump Era” and “Profiles in Cowardice in the Trump Era,” as well as “Treason & Betrayal: The Rise and Fall of Individual-1.

This is the second part of a two-part conversation.

This conversation has been lightly edited for clarity and length.

Where are we in terms of how Trump’s first trial is advancing? Are things going according to plan per the law and the court procedures?

The first stage went extremely well. The jury selection process was completed in only three days. That was lightning quick. I had expected it to take much longer. Judge Juan Merchan is to be credited with moving the process along in a very efficient manner. And if it continues with the same disciplined approach and doesn’t let it turn into a circus — which the judge won’t permit — the trial is going to move fairly swiftly. I would think that Manhattan DA Alvin Bragg and his assistant district attorneys are going to move their witnesses through quite quickly.

The direct examination is going to be relatively short and to the point. And it’s going to move from one witness to the other to a jury charge and then jury deliberation. Donald Trump really can’t testify because his cross-examination would be devastating. Ultimately, this is going to be a relatively tight trial, which is important. In this electronic age, attention spans are becoming shorter and shorter. You could be in danger of burning out a jury if it all goes on too long, which I think would be a matter of a couple of weeks. I would expect to see significant progress made next week with the prosecution’s case. They’ll be able to get on at least some key witnesses, such as David Pecker, who will be difficult for Trump’s lawyers to cross-examine since – unlike Michael Cohen – he is not a convicted liar. Then Michael Cohen will have to take the stand, but he won’t be the first or the last witness, since there will be, metaphorically, blood on the courtroom floor after he is pilloried on cross-examination. If things are going well, the prosecution might just cancel some of the witnesses and rest their case quickly, while they are way ahead on points. Then it would be up to Trump’s defense team, but they don’t really have any witnesses that can swing the pendulum back their way.

Then it’s on to closing arguments, the judge’s charge to the jury on the law they must follow, and then jury deliberations. This is all an excellent example of how our legal system is supposed to work. The adversarial system will play itself out as it has for hundreds of years, controlled by the judge with procedures in place that have been tested over time. When Trump’s verdict is issued in this first trial, it is going to be a great day for not only American justice, but also the British common law tradition that we draw from.

Jury selection has been concluded. What types of jurors did the prosecution want to see impaneled? Who did Trump’s defense team want on the jury?

Each side, obviously, wants jurors who have bias in their favor. But what I tell my clients during jury selection is “Don’t fall in love with any one particular juror who might be impaneled, because you’re probably not going to get them on the jury.” If one side likes a potential juror, then 9 times out of 10 the other side will exercise a peremptory challenge to make sure that this person does not make it onto the jury. That’s how we get an impartial juror. None of the jurors on the jury appear to have any strong biases one way or the other – unless, of course, they were able to hide it from the close scrutiny to which they were subjected. I am a bit surprised that there are two lawyers on the jury because they are likely to take a leadership role in the jury deliberation process, which may not be a good thing for the Trump team. But they’ve also sworn to keep an open mind. Generally, jurors take their responsibilities very seriously. As it played out over the last few days, the prosecutor was really trying to eliminate any jurors who won’t have an open mind. They were trying to screen out any prospective juror with a pro-Trump bias. As I see it, they’ve largely been able to do that. In this world of social media, they had to be very thorough to weed out biased jurors.

What steps were taken to prevent a person who is there to nullify the result in favor of Trump from being on the jury?

The prosecution was extremely meticulous in its research on the jury panel, and in their questioning of potential jurors. And even those who professed to keep an open mind but had social media tweets that exposed a bias in one direction or another were removed from the process. At this point, from what we know, it does not appear that there are any sleeper agents for Donald Trump on the jury. But you can never really know until things play out.

If a Trump sleeper agent was discovered, what could be done to remove them from the jury?

If there’s actual evidence that they lied during the voir dire process of jury selection, that could be grounds for a motion to strike the juror. That juror would be replaced with an alternate juror. That does happen on occasion. There is going to be so much close scrutiny it’s inevitable that information about their identities is going to start leaking out. We will see what happens then.

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What is being done to protect the jurors?

There are many precedents from organized crime cases. Sometimes a person has to be put in the Jury Protection Program temporarily. The jurors must know that, given the intensive scrutiny of this case, their own personal freedom is going to be severely restricted. That is for the safety of them and their families. There already are many police officers surrounding the courthouse. The NYPD and the court’s security officers have been assigned to protect the jury as well. There are also steps being taken to make sure that the jurors are not being subjected to unlawful surveillance or harassment from pro-Trump zealots.

One of the prospective jurors told reporters that seeing Donald Trump in court diminished him in her eyes. He didn’t have all the cameras and fanfare around him. He was just a regular person to her. Seeing him in that light surprised her. Is that a common response in your experience with organized crime figures for example?

I’ve had experiences where the head of organized crime families first walk into the courtroom with their chest outs and chin up like a mafia boss is supposed to act in real life or on TV. But when the evidence starts coming in, and the jurors know that the courtroom is quite secure, and there are marshals in the vicinity who are ready to pounce on anyone who might threaten the judge or jurors, then they start feeling more comfortable. The jurors focus on the evidence, not the man, and not the histrionics and theatrics of the courtroom. They have confidence in the system to keep them secure. The jurors also keep getting reminded of their obligations and the very unique position they are in to decide the facts of the case and render a guilty or not guilty verdict. As Trump’s trial advances, the jurors are going to get much more comfortable and focused on their duties.

If you were prosecuting Trump’s hush-money case, how would you present it? Would you be expansive and show all the mountains of evidence against Donald Trump or would you be more streamlined and focused? How would you calibrate your argument?

They’re going to move the documents into evidence pretty quickly, which is all the paper involving the phony legal fees charged by Michael Cohen, and the checks and other evidence of the payments and the payoffs. They are not going to go through these documents one by one, which would put the jury to sleep. I believe that the prosecution will instead focus on one specific example, where you have a payment to Stormy Daniels or one of the others and then just map out where that money came from, and how reimbursement was made for it and the various means that were used to disguise it. Then prosecution must prove how the payoffs and “catch and kill” agreements influenced the 2016 election cycle. The testimony of David Pecker and others on how they devised and carried out a scheme to conceal the negative stories about Trump’s extra-marital affairs from the public will be key here. The narrative will be something the jury can clearly understand.

How is the defense likely going to proceed?

Their best approach would be to impugn the credibility of the witnesses on the cross-examination, with the most vulnerable witness being Michael Cohen. But they can’t really explain away the documents. Trump’s defense will have to try some version of the OJ defense where they will try to oversimplify the case by saying something akin to, “If the glove doesn’t fit, you must acquit.” For example, Michael Cohen went to jail for lying to a Congressional committee and lying elsewhere. He’s very vulnerable on cross-examination. The defense will argue that if he lied under oath once, then it is likely that he is willing to lie again under oath in this trial. But then again, the prosecution will respond that he was Donald Trump’s own chosen lawyer, and that Trump chose him in part because he was willing to do the sleazy kind of things that gives some lawyers a bad reputation. Trump chose him for his bad character, not in spite of it.

It’s all very tough for Trump because he’s in the middle of a presidential campaign. If this was just an organized crime case, there would come a point where he would clutch his chest like he was having a heart attack and needed to be rushed to the hospital. But that would hurt Trump’s presidential campaign. The only way he can really save himself is to get a mistrial declared, or make a deal that Nixon’s vice president, Spiro Agnew, made to avoid doing prison time. He would have to agree to withdraw from politics and salvage what he can of his foundering businesses. But Trump is between a rock and a hard place, His ego will not let him to withdraw from the presidential campaign as part of a plea deal, and he can’t fake a health emergency would make him look old and feeble compared to President Biden. Trump really is in a tough spot.

Can Trump still take a plea deal at this point in the trial?

A plea can be entered at any time. I’ve had cases settle when a jury is out deliberating, when they are taking too long, and neither side knows what’s going on in the jury room. Sometimes you cut a deal at that particular point to avoid the risks of uncertainty. However, Trump is not an organized crime figure. Trump is a politician. Trump has to think about his legacy and the general campaign. Trump is basically limited in his options because of that. A Spiro Agnew-type deal with a promise of no jail time is probably still an option, but Trump would have to agree not run for political office again. Obviously, he’s not taking that option, and the window of opportunity for any plea deal where he would have to admit his guilt is rapidly closing.

If Donald Trump is found guilty in the hush-money case, how will that impact the subsequent criminal trials?

Everything relating to these criminal cases is intertwined, because there’s going to be testimony and sworn evidence, which is coming in this case, that is potentially usable in the other cases as well. Successive prosecutions are very difficult for an ordinary individual, and certainly for somebody who’s running for the presidency of the United States. It is only going to get worse for Donald Trump. It is not going to get better. All these criminal trials are going to merge into one long continuous criminal trial, just on different charges but basically telling the same story of corruption and venality.

What would you tell Donald Trump if he called you for advice?

I would tell him that you’re running a great campaign and fielding all these cases at the same time. But now’s the time to cut your losses. You can still withdraw from the campaign before the Republican Convention, and you can cut a deal with both the New York state prosecutors and the federal prosecutors. All you have to do is agree to be a regular citizen from now on and concentrate on your businesses. That’s going to be a win-win situation for you.

Would you help facilitate such a deal?

Most definitely. The country is on the verge of what could be a second civil war. If Donald Trump would just fade to black, step out of the political picture, the United States would hopefully have a chance to mend its wounds and come back to some semblance of reality and normal again.

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