How Do You Try Donald Trump? A Former Judge Weighs In

When former President Donald Trump’s hush money trial starts on Monday, April 15, the presiding judge, Juan Merchan, will have many balls in the air. The case starts with jury selection, but the judge should get ready for more dilatory motions and the not inconsiderable job of managing a defendant who may model his courtroom behavior on Al Pacino in And Justice for All or Abbie Hoffman in The Trial of the Chicago Seven.

Jury selection will be ugly. The judge’s juror questionnaire doesn’t ask who the jurors voted for in 2020. It asks orienting questions like favorite news sources, but you can bet that the Trump legal team will hammer away on every juror who doesn’t watch Fox News. His preference for Trump-voting Staten Islanders suggests he won’t be content unless the jury is stacked in his favor. To avoid a free-for-all, the judge should ask jurors most questions himself and screen proposed questions from the lawyers before they are put to jurors.

During and after jury selection, Trump will file more motions to delay or dismiss the case. The judge should anticipate them, set a schedule for them, and do his homework about the law that applies to them. He must allow Trump to make a record and receive just rulings without throwing the trial off track. At the appellate level, judges should be standing by too. We haven’t seen the last of Trump’s attempts to use an upper court to throw the lower court off track. They should be ready to rule as required to keep the process from bogging down.

And that leaves the biggest threat to bogging down the trial—Trump and his lawyers’ behavior during the trial. Here the judge should follow the broken-window philosophy of policing. If he doesn’t allow minor transgressions, he may not have to deal with any major ones. But he must be careful not to be baited into excess, either.

The best place to start is with the lawyers. Donald Trump may feel he has nothing to lose except the presidency if he doesn’t turn the trial into a showcase for his grievances. Things are different with lawyers. Lawyers are officers of the court. If they ignore court orders, judges can reprimand them, fine them, suspend them, or end their careers with disbarment if necessary.

The judge should block hyperbolic objections to evidence and insults to participants. Objections to testimony and other evidence have names—”hearsay,” “relevance,” “leading the witness,” and the like. The judge should normally limit lawyers to stating only these names. Discipline should be progressive. If warnings are ignored, they can be followed by a small consequence like a fine, and if needed can be followed by restrictions on questions and objections, followed by suspensions after trial, and even up to potential disbarment proceedings. Lawyers should be zealous but not contemptuous. Knowing the former from the latter is the judge’s art.

And it will take considerable art to restrain Trump himself. He might start with pulling faces in front of the jury. The judge should stop him right there, right out of the box, so Trump won’t move on to sighs, moans, stage whispers, and outright exclamations. The judge can’t let Trump mock the proceedings. If he does, he risks losing the jury’s respect.

If trouble continues after the judge gives Trump several chances to behave, he might have to resort to placing Trump in what, at church, we used to call the “cry room.” It’s a separate room where you can watch the proceedings but can’t disrupt them. Most courthouses have a place where an unruly defendant can see what’s going on, is able to communicate with counsel, and can testify, but also can have his mic shut off when he seeks to disrupt the proceedings. Fining Trump would be useless. It’s been done. A judge can’t tie and gag him. Watch the Chicago Seven movie to see how that one works out. But a judge must control the courtroom.

We’ll see if Judge Merchan can. We can hope this criminal proceeding is conducted with civility, but given Trump’s approach to litigation, this hope is more like a dream, and the trial will be more like a nightmare.

Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.

The views expressed in this article are the writer’s own.