A monumental case, unfolding in a court of law and a court of public opinion – Trump goes on trial

Former President Donald Trump’s New York trial on charges related to paying hush money to an adult film star begins on April 15, 2024. The Conversation U.S. asked Tim Bakken, a former New York prosecutor and now a legal scholar teaching at West Point, and Karrin Vasby Anderson, a political communication expert at Colorado State University, to set the scene from each of their perspectives.

It will be a “monumental drama” inside and outside the courtroom, said Bakken. Anderson adds, “It’s not just what happens inside the courtroom, but how we manage it outside the courtroom, that will be equally consequential for us as a nation.”

Bakken: The scene is very dramatic: A former president is on trial, for the first time. Trump is facing relatively minor charges that are not complex, and the evidence should not require a complex presentation. But the aura surrounding the introduction of the evidence has rarely occurred in world or U.S. history. And that’s not an overstatement.

Trump has been charged with over 30 counts of filing a false document. There’s just one basic charge: that he filed a false document and enlisted other people in his organization to help him file the false document to conceal the fact that he had paid money to Stormy Daniels to urge her not to speak up about his relationship with her.

Anderson: The rhetorical scene is complicated. Let’s break it into three separate scenes.

The first is sort of inside the courtroom, where there’s a modicum of moderation, particularly from Trump’s lawyers when speaking on his behalf. They speak of him as if he is like any other former U.S. president. There’s no recognition of the ways in which Trump has not conducted himself like past U.S. presidents, both in office and after leaving the White House.

The second stage is how Trump interacts with the judicial system in nonjudicial, nondemocratic ways. He’s doing a lot of communication outside of the courtroom, and that’s going to influence the way that we understand the case as it is unfolding.

One of the reasons why Trump has been subjected to a number of gag orders is because his rhetoric outside the courtroom appears to be trying to potentially intimidate jurors. If it’s not outright intimidation, then he’s openly trying to cast doubt by spreading misinformation and false information about the people who are involved in the case, including judges and their families.

The third scene is what Trump does on Truth Social, his social media platform, and at his rallies, which is what every authoritarian does: their rhetorical formula. They use their communication to destabilize democratic institutions, dehumanize opponents and scapegoat others. The institution that Trump is looking to destabilize with his pronouncements at rallies and on social media is the judiciary.

How can a judge keep control of a trial when all of this is happening?

Bakken: From what I’ve observed of Trump, once he enters a courtroom or is inside a legal proceeding, there doesn’t seem to be any issue in regard to misbehavior. He’s a practical person in that regard. But he goes just about as far as he can.

Anderson: Inside the courtroom, he and his lawyers are going to present him as a sort of normal, typical defendant, remarkable only in that he is a former president. When it is to his advantage to use democratic norms strategically, he will. But he doesn’t abide by them; he weaponizes them. What he’s really doing inside the courtroom is posing as someone who doesn’t need to have multiple gag orders applied.

Bakken: Everybody has fear in a criminal legal proceeding. You’re facing an institution that can imprison you. But the things that Trump is doing outside the courtroom, at least recently, seem to reflect his concern that he cannot control a proceeding. How does a person deal with the fear that emanates when somebody else has control over you? Some people are more meticulous and will crouch. Other people – there are few of these because the stakes are very high – will strike back. And that’s who Trump is. He’s learned throughout his life that the way he can survive is to strike back at people.

Anderson: Trump recently posted, in reference to the judge in his upcoming trial, “If this Partisan Hack wants to put me in the ‘clink’ for speaking the open and obvious TRUTH, I will gladly become a Modern Day Nelson Mandela – It will be my GREAT HONOR.”

Right there, he’s hedging his bets. He doesn’t want to go to jail. What he has to do is get ahead of that message and further destabilize the democratic norms, by saying essentially, “Well, if I get convicted, it’s not me getting convicted in a court of law. It’s me getting thrown in the clink like Nelson Mandela.”

Bakken: There are a lot of people who comment on the legal system and say exactly the same things that Trump does. Very few will accuse those people of being authoritarian.

I’m certainly not an advocate of Trump or the district attorney in this case – I’m trying to look at it neutrally. And in any number of controversial cases going back decades, we can see people arguing that the system is unfair.

Trump is on a larger stage, but he’s essentially saying the same things that 50 out of 100 people would say in downtown New York City, where his courtroom will be. They’ll say the system is rigged. I heard that, of course, as a prosecutor, and I continue to hear that on an almost daily basis from people when they comment about the legal system.

Anderson: Trump does play the victim and the martyr, saying the system is unjust and charges against him are politically motivated.

But an authoritarian doesn’t stop there. They flip it. So it goes seamlessly, both at rallies and in social media, from “Look at me, I’m like Nelson Mandela, they’re going to throw me in jail,” to “If you don’t want this terrible system to be exploiting you, you’ve got to elect me, I alone can fix it.” He pairs those two things. That’s one of the key indicators that this is not just victim rhetoric; it’s actually authoritarian rhetoric.

Since 2015, there’s been a dramatic uptick in attacks on judges. That’s a telltale sign that Trump is not just critiquing the system or even just playing the victim. He is flipping that to say, we need to fight back using these other means, and his supporters are hearing that message and they’re threatening judges.

Some last thoughts from each of you?

Bakken: The case will be a monumental drama not only inside the courtroom, but outside the courtroom. Whether the trial can go off the way trials have normally gone off is a real test of our country and our legal system. And if it does, then we can have some confidence that Trump’s extracurricular statements and admonitions have not affected the jurors.

Anderson: I hope that as people are paying attention to the trial, they see themselves as actors and participants in creating whatever culture is going to come out of this. It’s not just what happens inside the courtroom, but how we manage it outside the courtroom, that will be equally consequential for us as a nation.