And We Have a Jury—Faster Than Expected

April 18, 2024

It’s 7:39 a.m. at 100 Centre Street, the New York Supreme Court’s criminal division, and I’m feeling hopeful.

Just two days ago, when we adjourned day two of jury selection in former President Donald Trump’s New York criminal trial, Justice Juan Merchan had already empaneled seven jurors. With only 11 more to go, including five jurors and six alternates, the daunting task of seating a jury for someone as famous as Trump in a week is starting to look a whole lot less daunting. I nearly skip through the magnetometers and take my seat in the overflow courtroom with the rest of the press corps.

At 8:54 a.m., Trump's motorcade arrives, and the second panel of potential jurors, already having been sworn in on Tuesday, make their way through security at 9:00 a.m. sharp.

I interpret their timely arrival as reflecting respect for Justice Merchan's instructions to be punctual—as well as a good omen for the day to come.

At 9:17 a.m., Trump takes his seat at the defense table, wearing a blue tie today instead of his signature red. Another good omen? I wonder.

Five minutes later, all rise as Justice Merchan takes the bench, and the parties introduce themselves: Assistant District Attorneys Joshua Steinglass, Susan Hoffinger, and Matthew Colangelo for the prosecution, and Susan Necheles, Emil Bove, and Todd Blanche for the defense.

At this point, the day’s auspicious start takes a turn.

"Do we have a court reporter?" Merchan asks. Apparently not. "That's not good," Merchan jokes.

But a few minutes later, the court reporter appears, and we try again. “This is The People of the State of New York against—,” the court officer starts, but then trails off. Another false start.

Two minutes later, she reads the full caption: The People of the State of New York v. Donald J. Trump. Apparently the first introductions were just a dress rehearsal, and the parties go through the formalities once again.

"Good morning again," Justice Merchan says.

Perhaps I was misreading the legal tea leaves. It’s a rocky start that’s about to get rockier.

Instead of immediately bringing in the second panel of jurors, as promised before adjournment yesterday, Justice Merchan wants to address a few “preliminary matters.” Namely, that the court received a call the prior evening from Juror 2, who expressed concerns about potential public disclosure of her identity, despite Justice Merchan ordering an anonymous jury in the trial. She enters the courtroom to offer a brief statement, sharing her fears. “I don't believe at this point I can be fair and unbiased,” she says, and is excused without objection.

She would’ve “been a very good juror,” Justice Merchan laments after she exits. He then turns to address the press. “There's a reason why this is an anonymous jury and why we're taking measures,” he says. “It kind of defeats the purpose” if the press puts out so much information that it's easy to identify the jurors. While the press is free to write about anything put on the record, he says, he requests that reporters exercise “common sense.” The judge offers an example of something that would not constitute common sense: publishing a juror’s physical description, including the Irish accent of the jury’s foreman.

There has been some speculation that Justice Merchan here is referring specifically to Lawfare’s—and my work, specifically—with these criticisms of the press. Here’s Lawfare Editor in Chief Benjamin Wittes’s response to those criticisms, which takes place on our YouTube “Trump’s Trials & Tribulations” later in the day:

Steinglass rises to make a suggestion. Perhaps jurors should omit their answers to questions 3A (“Who is your current employer?”) and 3D (“Who is your prior employer?”) of the jury questionnaire. It's the most identifying information, as far as the government can tell.

Justice Merchan calls this a “great suggestion,” but Necheles disagrees and stands to say so. The defense shares the safety concern, she says, “But we asked for a written questionnaire because of this.” She says it’s the government's fault that we don't have a written questionnaire, because “they wanted everything out there.” Blanche backs her up. There’s a transcript, and there’s a record, he says, and the press can report on it.

Justice Merchan deliberates internally for a few moments, then arrives at a compromise. He agrees with the defense that employer information is necessary, but he also says that it has become a liability. So he orders jurors to continue with the questionnaire as is, but he declares that questions 3A and 3D will be redacted from the record, and that the press is prohibited from reporting the answers.

Chistopher Conroy for the prosecution stands to raise another non-jury-related issue. Since Monday, Conroy says, Trump has violated Justice Merchan’s gag order an additional seven times. I say additional, because the judge already scheduled a contempt of court hearing for Tuesday, April 23, to review Trump’s many other alleged gag order violations. “It's ridiculous, and it must stop,” Conroy says, as he proceeds to rattle off the offending posts that the prosecution would like Justice Merchan to add to Tuesday’s hearing.  

Bove, sounding almost glad to get into it, says that this morning’s discussion “brings to light some of the ambiguities” in the gag order. Referencing one of Trump’s posts related to witness Michael Cohen, Bove explains that Cohen has been attacking Trump and his candidacy for president, and plans  to challenge the idea that reposting statements by others that are already in public constitutes a violation.

“I look forward to seeing that,” says Justice Merchan, as Bove and Conroy go at it again. But Merchan cuts them off. “We haven’t had the hearing yet.”

Steinglass serves the defense with the order Justice Merchan signed moments ago, and I think finally we’re back on track to bring in the jurors. I am wrong. We now learn that Steinglass has alerted Merchan to troubling information that called into question the veracity of answers given by Juror 4, who was also directed to arrive that morning at 9:15 a.m.

It’s now 9:50 a.m., and Juror 4 has still not arrived, so we’ll have to table this issue for now. My warm and fuzzy morning feeling has now all but dissipated.

“We have 96 jurors, any reason why we can't bring them in here?” Justice Merchan asks rhetorically, and the court hands each side the list of numbers and names for the second panel. As they file into the courtroom, some of the jurors look surprised to see Trump at the defense table, and Trump seems to scan the new arrivals right back.

This panel has already been sworn in, so Merchan welcomes them, thanks them for their promptness and makes the now-familiar introductions. As he reads the indictment summary, including the number of counts, Trump shakes his head as he looks down at the table.

In a curious break from formality, when they are introduced, Trump does not stand up with the rest of his legal team to turn and face the potential jurors seated in the audience.

As Justice Merchan continues to read the boilerplate instructions to the second panel, Bove passes a folded written note across Trump, whose eyes are closed, to Blanche. If the former president was worried about the media allegations that he has slept through portions of jury selection so far, he has a funny way of showing it. Justice Merchan is once again reading the list of people involved in the case in some way—though not necessarily as witnesses. The dramatis personae is long.

We quickly move to Blanche’s patented “hybrid” process, in which jurors are asked first to raise their hands if they can’t be fair and impartial, then again if they are unable to serve on the jury for some other reason. After those two rounds, 39 jurors remain—about on par with the first panel at this point in the process.

Eighteen jurors, selected at random, take their seats in the jury box. Now we’re getting somewhere. But before the first juror begins the questionnaire, she asks if it’s disqualifying that she discussed the case at length, including the Mark Pomerantz book, with her co-workers and her boss. The press laughs—first laugh of a tense day.

Before long, we settle into the slow grind of the questionnaire round. The pace is slow, and some reporters shuffle in and out to use the restroom. Trump, however, is rapt, and he scoots his chair back from the table, turning it about 45 degrees to face the jurors as they read their answers.

Many of the answers are repetitive. The venue being Manhattan, there are a lot of lawyers, or people who know lawyers, or people who are related to lawyers, or people who are married to lawyers. There are also a lot of people in finance, or people who know people in finance, or people who are related to people in finance, or people who are married to people in finance. You get the picture.

But there are also a few firsts of the day. We have our first juror who has copped to following Truth Social posts by Trump. Another first: A potential juror has served on a jury before, but it was declared a mistrial. As others have noted, this is the kind of profile the defense might seek out. A not-guilty verdict would be great for Trump, but a hung jury would do just fine as well.

Most potential jurors offer pro forma answers, but a few jump out in the monotony of “yes” and “no.” When asked about experiences with law enforcement, one juror said she got a parking ticket once and “didn't love that.” If that were a strikable view, I don't think a jury in any jurisdiction would be possible. “I read the first ten pages or so of ‘Disloyal,’” one juror who works in publishing admits about Michael Cohen’s 2020 memoir, but then adds curtly, “for business reasons.” Another juror, a real New Yorker, wins over the press immediately when he says, “The only news I read is the Daily News and the Post” (that's the New York Post, mind you, not that Washington, D.C., paper). When he mentions that because he has a flip phone, he doesn’t “watch podcasts,” that secures his position as the press’s favorite juror of the day thus far.  

At 11:35 a.m., Justice Merchan calls for a 15-minute recess, and a sigh of welcome relief washes over the press overflow courtroom. He excuses the jurors and lets counsel know that the mysterious and tardy Juror 4 has arrived.

The naughty juror enters the courtroom, but the questioning happens in an animated sidebar conversation, so the press is not privy to it. “Don't try to listen,” a court officer tells reporters seated 35 feet away. Trump remains seated at the defense table, having waived his right to be present at sidebars on Tuesday. The juror leaves, and counsel engages Justice Merchan in another animated sidebar. The juror returns, then leaves again. After more deliberation, the judge excuses Juror 4 and says, “He does not need to come back and should not come back.”

Ouch.

It’s 12:13 p.m. on Day 3 of jury selection, and we’re going backward, having lost a second empaneled juror. A chill washes over the room—literally. Blanche complains about a fan and how cold it is in the courtroom.

"I agree with you, it's chilly in here, no question," Justice Merchan says, taking a swig of water.

The winds of change are blowing in the wrong direction, and they’re cold winds to boot.

The jurors step back into the tundra, and we settle back into the questionnaire. “This is so bizarre,” the next potential juror begins, as she starts to answer the questionnaire. She came to New York with dreams of making it big in theater, but ended up in the legal field. Shoot for the moon; even if you miss, you may land among the lawyers. One juror mentions that her apartment was burgled once, but adds, “That has nothing to do with this … should be fine.” Another is from Italy, and he says he can’t be fair or impartial due to the “very strong associations between Mr. Trump and Silvio Berlusconi” in his mind, referring to the very Trump-like former prime minister of Italy. He is excused without objection.

Soon enough, we've done it, a full jury box of 18, ready for voir dire. But first, lunch.

At 2:35 p.m., Justice Merchan retakes the bench and says, “Thank you, please be seated.” He welcomes the jurors and starts by apologizing for how chilly it is in the courtroom.

Video is back on, and both sides are seated in the same seats as this morning.

The judge proceeds to read the boilerplate instructions for voir dire. Recall, each side gets 30 minutes.

Steinglass takes the lectern and begins by introducing himself and co-counsel, and launches into the same speech that we heard before. To the question of how jurors should answer these questions, he says: “I know this sounds simple and trite, but the answer to that is: the truth.” He moves through the usual stable of themes, asking panelists in the box how they feel about each point. “This isn't a referendum on whether you like Trump or not,” he says—it’s about whether the defendant broke the law.

So far, he hews very closely to his spiel yesterday, but there are subtle differences. To illustrate his point that inconsistencies in otherwise credible witness testimonies may arise, he doesn't make a baseball analogy, but rather an analogy about when two people see the same movie and pick up on different things. He says many witnesses in this case “come with what you might call baggage.” Many of the witnesses publicly denied the facts presented in this case, but the jury will learn why they did. When Steinglass says that the jurors will learn that some of the witnesses received immunity for testimony, Necheles objects, but Justice Merchan overrules her. When Steinglass makes the hiring-a-hitman analogy again to explain accessorial liability, which had angered the defense on Tuesday, Necheles interjects with an objection again, which Merchan overrules again.

Steinglass turns to the importance of determining Trump's intent, and I can feel an analogy coming on. “I know you guys all like examples,” Steinglass says, almost as if reading my mind. If the prosecutor is endowed with ESP, Trump is in trouble. He offers again his tried and true crossing-a-street-while-someone-is-honking-at-you analogy to explain the use of context clues to determine intent, but then changes tack.

A different analogy now: You walk into the kitchen and see that a chair has been dragged over to the fridge atop which a cookie jar sits. The jar is tipped over, and you see your daughter stepping off the chair wiping cookie crumbs from her mouth. “What happened here?” Steinglass asks a juror. When the juror remains silent, Steinglass pleads, “Work with me here.” The juror, without any hint of irony, suggests that it's possible someone could have snuck into the house and smeared a cookie on her face.

Steinglass then asks the potential juror who said she had a prior relationship of sorts with defense attorney Necheles to clarify. The juror says that she met her once 15 years ago and has no concern that this will keep her from being objective, fair, and impartial.

Justice Merchan thanks Steinglass, and Necheles steps up to the lectern. “We have the honor of representing President Trump in this case,” she says, introducing herself and co-counsel. She immediately goes after Steinglass's point that witnesses may contradict each other. She asks, can you use your common sense to know when two witnesses get on the stand and say two diametrically opposed things under oath, that one of them is lying? Some of these witnesses have expressed great dislike, she says, a personal animus against Trump. She says one even has said they want to take revenge against her client.

We start with juror B430. She says no, she doesn't have strong feelings or opinions about Trump. They agree on some things, not others. Yes, she has occasionally posted about him on social media, generally in a negative fashion, but she's often negative about politicians.

Why? Well, first of all since the whole COVID situation, B430 says, politics just seems like a nasty thing to be posting about during an international crisis, so she backed off of posting in general.

One juror, when asked about opinions about Trump, responds: “I've got opinions, yeah. I’m born and raised in Brooklyn, New York," and she spent her whole life hearing about him. She even once saw Trump and Marla Maples shopping for baby things and had family who lived in Trump buildings. The juror who had family living in Trump constructions said they had no complaints with how they were built. Trump nods along approvingly.

"I'm freezing," another potential juror says. If someone doesn't act quickly, we might lose yet another juror, this one to frostbite.

Maybe the cold has loosened them up, but jurors are being much more forthcoming about their feelings about Trump today. "I don't have strong opinions about him, but I don't like his persona," says one potential juror, getting a good laugh from the press. “He's very selfish and self-serving, and I don't really appreciate that in a public servant,” she explains, this time more solemnly.

“Some policies are good, some are outrageous,” says another potential juror about Trump the president, not the person. “Sometimes the way [Trump] may carry himself in public leaves something to be desired," says one potential juror, after forcefully arguing that she's a centrist, and that her personal feelings won't get in the way of her impartiality.

This is a fascinating voir dire, as Americans inadvertently have an opportunity—not just an opportunity, but a legal requirement—to tell Trump to his face exactly how they feel about him, without his ability to respond in any way.

Not all sentiments are negative. One potential juror seems a bit in awe of Trump. “I mean, he was our president, pretty amazing,” he says, and mentions that he’s a fellow entrepreneur. “He was a businessman in New York. He forged his way. He kind of made history … I’m impressed with that.”

Justice Merchan thanks the jurors and asks them to step outside while the attorneys review their notes. This round of challenges should be interesting.

Another pool reporter clarifies that Merchan will swear in the third panel of prospective jurors while both sides review their notes for "for cause" challenges and peremptory strikes on the jurors who just left the box from panel number 2.

The third panel has now been sworn in, and Justice Merchan lets them know that they're about to be excused until tomorrow. He gives the familiar instructions not to read or watch or talk to anyone about the case.

Trump looks at his aides in the gallery and says, “It's freezing."

“We started the day with seven, and now we're unfortunately down to five,” Justice Merchan says as we start with challenges for cause on the prosecution side.

Since Seat 1 stated outright that she could not be fair and heard so much about this case, Justice Merchan grants the challenge. Next, Necheles rises to challenge Seat 4, the one who met her 15 years ago. Necheles clarifies that she was much better acquainted with the juror’s husband but says that the potential juror once stayed at her house overnight. Small town New York City. Justice Merchan isn't convinced, and her challenge for cause is denied.

After a series of peremptory challenges, Justice Merchan suddenly announces that we have two more jurors, as B565 replaces Juror 2 and B470 replaces Juror 4. Before I celebrate, I remind myself that it’s now 4:07 p.m., and we have only just reached the point at which we ended on Tuesday. Still, I feel the morning’s light once again. That hopeful feeling begins to return, ever so slightly.

By my count, the prosecution has three peremptory challenges left, and the defense has one.

Now back to challenges for cause for the rest of the box, and Necheles moves to strike a potential juror based on social media posts, which she says shows that she "harbors a deep hatred" of Trump. Steinglass points out that unlike the juror from Day 2 who posted something about locking up Trump, this may be anti-Trump rhetoric, but it’s quite old. She also said that since COVID, her political posts and feelings have mellowed.

She returns to the courtroom to clarify the meaning of the posts, and someone hands her a copy of the posts in question.

“Are these your posts?” Justice Merchan asks. Yes, she says. “Do you remember making these posts?”

No, I do not, she says.

She is now forced to read the post aloud into the record in a public trial, the exact scenario about which I am almost positive I have had several nightmares. As she reads, she stops herself and says, “Yikes, that sounds bad, sorry guys.”

“Those are pretty strong sentiments,” Justice Merchan says.

“Yes they were ... Oh gosh, let's see,” she says as she goes to the next.

This trial has been nothing if not a lesson in digital permanence.

“Electoral politics can get pretty spicy, and Mr. Trump can get pretty spicy with some of his politics too,” she says, adding that she should apologize for the content of some of her posts. She withdraws the term “racist,” she had used in a post, and clarifies that there have been some behaviors of Trump's “toward females” that she doesn't approve of, but argues that this case isn't about that.

She steps out, and Justice Merchan says that this is a close call. He can easily find that she’s quite credible, noting that she apologized to Trump, but viewed as a whole he doesn’t want to take a chance and grants the challenge.

After a peremptory strike from each side, leaving two for the prosecution and none for the defense, we make a bit more progress. B639 is Juror 8, and B423 is Juror 9.

By 4:31 p.m., the prosecution burns the last of its peremptory strikes, and B789 becomes Juror 10.

Necheles now challenges for cause the potential juror in Seat 16, who doesn’t like Trump’s “persona” and has called him selfish and self-serving. Justice Merchan counters that those were only some of many statements that she said, and Steinglass argues “that's not close to a cause challenge.”

The two sides go at it again about whether Trump’s likability is a factor. Justice Merchan seems to want to settle this issue once and for all. He mentions that he often tries gang members, sex offenders, and other unsavory characters. “Nobody likes a sex offender, but you don't like the crime,” not the person, Necheles says as she tries to draw a distinction.

But the matter is settled. At 4:35 p.m., Justice Merchan seats B500 and B440 as the next two jurors, respectively, rounding out the full jury of 12—another unlikely milestone at the end of a tense day that began with losing jurors. After B714 becomes our first alternate, the judge welcomes back into the courtroom the newly empaneled jurors. The sergeant swears them in, and Justice Merchan asks them to return on Monday at 9:30 a.m. The judge, at least, is still hopeful about wrapping up jury selection this week.

“For those of you that remain out in the audience, we're not done with you,” Justice Merchan says. But we don’t start up with the questionnaires yet. Instead, the sergeant calls out juror box numbers, so they know where to sit tomorrow morning to start right away.

"Alright jurors, these are your seats for tomorrow," says Merchan, who wants to start at 9:30 a.m. sharp.

The jurors leave, but we're not done yet, as Steinglass raises two brief issues. First, he asks whether we can break early Monday and Tuesday for Passover. Justice Merchan confirms that the plan is to work through lunch on both days and break at 2 p.m.

Finally, Steinglass inquires for the record about the court's preference for potential witnesses to be present for other witnesses’ testimony. Blanche says this is the first he is hearing of this and requests the names of the first three witnesses. An unamused Steinglass says that’s usually a courtesy, one that he is nowhere near inclined to extend, because Trump has been tweeting about the witnesses for the duration of the trial. Justice Merchan sides with the prosecution and won't order them to divulge the order of the witnesses.

“What if I commit to the court that President Trump will not” post on Truth Social about witnesses, Blanche asks.

“I don't think you can make that representation,” Justice Merchan replies.

Ouch.

And that's a wrap on Day 3. A lucky 13 down, five to go.

April 19, 2024

It’s 7:37 a.m. at 100 Centre Street, and after the previous day’s two steps back and six steps forward progress, I’m feeling hopeful again. Cautiously hopeful.

Both sides had exhausted their 10 peremptory challenges yesterday. Yesterday may have started with a whimper, but it ended with a bang—and a milestone. We had our full jury plus one alternate. Only five more to go.

The sides had burned their peremptories for the jury of 12, but they are now afforded an additional two peremptory strikes per alternate. They don’t roll over. In other words, if you use only one for the first alternate, you still can use only two for the next.

Still, I permit myself a bit of hope, because if there’s one thing I can be certain about in this unprecedented trial thus far it’s this: Justice Merchan runs a tight ship, and he wants opening statements on Monday.

Going through the multiple layers of security and magnetometers, I hear a reporter behind me say, “It’s a new adventure every day.”

It's drafty again in the press overflow room, and reporters are torn between sitting on their coats for extra cushion on the hard court pews, or wearing them for insulation against the harsh climate.

Yesterday, everyone—counsel, jurors, Justice Merchan, even Trump—complained about the cold. I revise the reporter’s earlier mantra: It’s a new arctic adventure every day—except when the courtroom is too hot, as it was on Monday.

At 8:53 a.m., Trump's motorcade arrives at the courthouse, and by 9:00 a.m. he’s grandstanding with the reporters in the hallway calling the trial rigged and saying that Bragg, who attended Harvard for college and law school, was “not smart enough to represent himself … like Letitia James.” He says he should be campaigning in Pennsylvania, Georgia, and North Carolina instead of in court and demands that the judge release him from the gag order. Trump then calls unspecified people who are talking about him “real scum.” This is all standard fare at this point.

Also standard fare are the select few members of the public lucky enough every day to get into the historic trial. Today, I spot three civilians. The first is a man in a striking plaid orange suit, who, when asked why he’s here, replies, “I'm here making sure God is with us.” The second is a woman in a bedazzled American flag hat. And the third, much to my surprise, is a familiar face: the young tourist next to me at the Feb. 15 pretrial hearing who clapped at the end and was immediately shouted down by court officers for it.

I greet him familiarly, but he can’t get a word in edgewise because the woman in the bedazzled American flag hat, having seen my Lawfare press ID, begins a bit of grandstanding herself, calling this whole thing “lawfare against Trump.” I learn that she visits “Jan. 6 prisoners” in jail every month.

It’s now 9:27 a.m., and I see that the prosecution and defense are settling in, so I thank them for their time and return to my seat.

Trump is back in a red tie today, though this one has small white stripes, and his aide Steven Cheung takes a seat in the back row of the courtroom, joined by lawyer Cliff Robert, who was one of Trump's main attorneys in the New York attorney general's civil fraud trial against him.

At 9:31 a.m., all rise for The People of the State of New York v. Donald J. Trump. Justice Merchan is at the bench, and both sides introduce themselves. “I'm told that all 22 jurors are here and ready to go,” Justice Merchan says about the remaining prospective jurors from the previous day’s panel. “We're also still working on the temperature in the courtroom.”

The judge welcomes the panelists back, thanks them for being on time, and gives instructions on the questionnaire. The first potential alternate juror begins, but not with question 1. “With the disqualifying thing, I have really bad anxiety,” she says, her voice shaky. “So I might not be able to be completely fair and punctual.” She continues, “The more days that go on and more and more people in my life know that I’m here without me even telling them, they just put pieces together.” She is excused without objection.

We quickly settle back into the slow tempo rhythm of the questionnaire, broken up periodically by laughter from the press at some of the more colorful answers.

When asked whether she listens to podcasts, the second potential juror says emphatically “No—never,” getting a laugh from the press. Later, she says, “No, I don't take any medications, not even Tylenol.” Maybe we're all in chronic pain for listening to too many podcasts? But then a more likely answer for her lack of pain arises: She doesn't have any social media. “No Instagram, no Snapchat, no whatever it is,” she says proudly. Justice Merchan asks her politely just to answer the questions yes or no.

“I'm good with the time, as long as we get to eat,” one potential juror says, when asked whether the schedule and timing of the trial works for her. She wins grunts of approval from the press corps. Another juror, a former amateur boxer, quit fighting “because black eyes are frowned upon in office places.”

Several jurors have a hard time holding the mic at an angle that keeps it working, resulting in the sound cutting in and out. But soon a juror who works as an audio specialist is up and offers jokingly to fix the microphone if the previous day’s tech problems persist. “Thank you, we'll take you up on that later,” Justice Merchan says, smiling. The pool reporters in the courtroom with Trump say that it is, in fact, still quite chilly in there. Hopefully there’s a potential juror still left who's an HVAC specialist too.

Other answers verge on the sentimental. “Everyday, I clean my local dog park, morning and evening,” one juror says, calling it “meditative.” When asked about his hobbies, one juror says sheepishly,  “I try to find a wife in my spare time, but it's not working.”

I'll go on the record and say it right now: New York City has some of the greatest people in the world.

It is also heartening to learn about some potential jurors’ discerning media consumption. One juror had an "interesting routine," he says, in which he listens to “NPR and Fox News in a single walk” to get both sides. “They're remarkably different.”

Many are readers, some even of books written by the defendant. Some, but not all. One potential juror, a self-proclaimed “born-and-bred New Yorker,” appeared to speak directly to Trump when he says: “I never read any of your books.”

There’s also plenty of discussion of podcasts. The prospective juror after the born-and-bred New Yorker jumps immediately to question 35, and asks if his loose and tangential ties to Michael Cohen's podcast Mea Culpa is disqualifying, but Justice Merchan allows him to proceed after the juror assures him he can be fair and impartial. Another juror says a bit later on, “I used to listen to The Daily, but it’s too depressing, so I stopped.”

Note to self: More “happy” content on the Lawfare Podcast.

Though Trump is physically here, his mind may be elsewhere. This morning, he fired off a series of posts related to the pending outcome of his presidential immunity case at the Supreme Court. At one point, he appears to be chewing on something as he sits at the defense table. At other times, he hunches over a stack of papers for long periods of time. A pool reporter notes that the pages contain either charts, photos, or graphics—definitely not text.

The next potential juror jumps to question 29A—Have you, a relative, or a close friend ever worked or volunteered for a Trump presidential campaign, the Trump presidential administration, or any other political entity affiliated with Mr. Trump?—and discloses that a family member is a lifelong friend of former New Jersey Gov. Chris Christie. Another potential juror says he knows a court officer. He clarifies, “A court officer ... in this room.” Another day in small-town Manhattan.

Though it’s a Friday, and several jurors have already had the press in stitches, not every questionnaire goes smoothly. As more jurors answer questions, it's notable just how many Manhattanites have interacted with the criminal justice system in some way—as victims of crime, knowing people who committed crimes, working in the legal profession, working in the courts or prisons, etc. And not unrelatedly, it’s also notable how many New Yorkers struggle with mental health. 

To question 18, about whether he or a relative had any experiences or interactions with the criminal justice system. “It was a good experience, but a tough one.” the panelist says, pausing and tearing up. “The system was helpful.”

But the day takes an emotional turn when the next juror jumps to questions 14-19, saying she's disqualified because she served time. As she too tears up, she says, “I wrote down all my crimes, it was over ten years ago, and you guys keep calling me back for jury, and I'm pretty sure I'm not supposed to be here.” She was summoned for jury duty as recently as January and had to go through this then too. It sounds like a very painful experience that she now keeps having to recount.

Justice Merchan seems genuinely concerned as he asks if she’d like to approach the bench to discuss this more privately. Recall the trial will not convene on Wednesdays because on that day Justice Merchan presides over Manhattan's weekly Mental Health Court, in which offenders with a mental illness agree to closely monitored treatment in the hopes of dropped or lessened charges. The juror at the bench right now likely finds a sympathetic audience in the judge. After the sidebar, she apologizes for crying and proceeds with the rest of the questionnaire.

At 11:24 a.m., Justice Merchan excuses the jurors, and notifies counsel we will take a “very short” 10-minute recess. But first, referencing the emotional exchange, the judge says, “We all just heard from a very brave woman. So I just want to encourage the press to please be kind. Please be kind to this person.”

During recess, the court officer tells the press that phone calls are permitted only in the restrooms, another protective measure for potential jurors. Most chat with editors, but I notice that one enterprising reporter sets up shop in one of the men’s room’s three stalls to conduct a live radio interview. I don’t listen in because I respect people’s privacy.

Twenty minutes later, we’re back, and Susan Hoffinger begins voir dire for the prosecution. “Good morning,” she says. “It's still the morning.”

She works her way through the same points we heard in past voir dires from Steinglass. She starts with B441, who promises to hold the prosecution to their burden of proving guilt beyond a reasonable doubt, nothing more, nothing less. She moves to what Steinglass called the “opinionated masses,” who, Hoffinger says, “don't have access to the facts—the truth—that you'll hear if you're picked.”

But one potential juror breaks up Hoffinger’s flow. “I feel so nervous and anxious right now .... I don't want to waste the court’s time,” she says, tearing up. “This is so much more stressful than I thought it was going to be.” Clearly, the stress is weighing on the jurors by day number 4. Justice Merchan asks if she’d like to approach the bench and, after a brief sidebar, excuses her.

“Documents don't lie,” Hoffinger continues, asking the box if they’re comfortable reviewing immense numbers of documents. Working through the evidence in this case might be a “slog,” she adds.

Hoffinger breaks down accessorial liability, which she explains as “people who act together can be held criminally liable for the acts of the other people” and asks whether people would be comfortable holding Trump liable in such a case. It gives jurors no pause. Her voir dire maps onto Steinglass’s almost exactly—though, sadly, with far fewer colorful analogies. No hitmen, no "Jack and Jill" bank robbers, no baseball games.

Necheles replaces Hoffinger at the lectern and introduces her co-counsel and client. She starts with an appreciation of the “candor” everyone has shown up to this point. She says she's trying to figure out if the jurors have any biases about a figure “as public and outspoken as President Trump is.” Jury selection has highlighted Trump's ubiquity in America. Striking a juror for simply knowing of or having an opinion of Trump is not an option.

Another potential juror now breaks Necheles’s flow when she asks to approach the bench, because this line of questioning is causing her “anxiety and self-doubt.” Justice Merchan allows it and excuses her as well after the sidebar conversation.

Necheles asks a juror about her attendance at the 2017 Women's March—which coincided with the events discussed in this case.

“There was a lot of anger at that march toward President Trump,” says Necheles.

“I believe it was more about women's solidarity,” the juror replies dryly. When asked her thoughts on Trump’s policies, she says, “This is a little embarrassing but I'm not exactly sure what Trump's policies are.” She mentions that people dislike his rhetoric and that some people cite the former president when making homophobic or racist comments. 

Trump watches her as she speaks.

When asked what his opinion of Trump is, one potential juror says it doesn't matter, but when Necheles presses him, says, “My opinion is that Donald Trump is a man, just like I am, and should be treated fairly in a court of law.”

Necheles asks a lifelong New Yorker if he has opinions on Trump as a New Yorker: “We don't really get starstruck or care about anything like that. He's just a normal person like me—that's the way I see Trump.” The next juror complicates the question, disaggregating his opinion between Trump the person, the politician, the businessman, the family man. Another juror ducks the question altogether, expressing what I can only describe as Trump fatigue. “There's been so much thrown around for the last few years that I simply disregard it as much as I can,” he says.

In an interesting departure from previous voir dires, Necheles mentions that there will be allegations that Trump was unfaithful in his marriage, asking if that would cause anyone difficulty in being fair, while also noting that infidelity is not a crime.

Toward the end of voir dire, we have another notable first when a juror just calls Jan. 6 “the insurrection,” likely sending up red flags in the collective mind of the defense. As if they needed any more reason for pause, when Necheles asks his opinion of Trump, he says, “I would say it's fairly negative.” 

The jurors step out, and the attorneys gather their notes. It seems like we’re about to pick up speed again, and by 12:55 p.m., B441 becomes alternate 2. But a challenge from Necheles for alternate seat 3 slows the pace again. It’s the amateur boxer who had referenced “homophobic and racist comments,” but Hoffinger clarifies that she said that Trump enables his followers to do that, rather than Trump saying those comments himself. She comes in to clarify, confirming Hoffinger’s interpretation. In conversations within the boxing community back in 2016, she felt that Trump’s “devout” followers were emboldened by his rhetoric to discriminate against others, including against her “as a woman." 

When she leaves, Necheles maintains her challenge for cause, noting that the juror said Trump enabled discrimination against her personally. Justice Merchan finds her credible and genuine, but “to ensure finality of this case, it's best to err on the side of caution” and grants Necheles’s challenge.

The defense lawyers start to caucus among themselves, but Justice Merchan gets impatient. “Counsel, this is just the third seat, you really should be ready for this one,” he says. This seems to kick them into gear.

Suddenly, B616 becomes alternate 3, and B624 alternate 4. 

At alternate seat 5, Necheles mounts another social-media-related challenge against a juror who allegedly posted photos from an apparent anti-Trump rally. After bringing him in for clarification, Merchan also finds him to be credible and isn’t convinced that his sentiments are necessarily anti-Trump. But he exercises caution. “We've come too far in this trial to jeopardize it now,” Justice Merchan says and grants the challenge.

The next challenge is also social media related, and the juror in question enters the courtroom to review his offending posts. “These are not my posts,” he says at first, confused. But when shown one of the posts that says Trump “actually is the devil,” he remembers that maybe, yes, he did post that. This one is much easier call. The challenge is granted, and the juror is excused.

With that challenge out of the way, we have hit a breakthrough, and the biggest milestone yet. By 1:32 p.m., B557 becomes alternate 5, and B620 is alternate 6. Elated, I tweet (in an all caps style not entirely different from Trump), “WE HAVE A FULL JURY.”

The new jurors return. After they’re sworn in, Justice Merchan says, “We expect the trial itself to begin Monday,” and he asks them to return promptly then. 

A jury in the first criminal trial of a former U.S. president is now seated. 

Justice Merchan thanks “the entire crew” for working through lunchtime to get the full panel. “We'll take a long lunch today,” he promises, and adjourns until 3:15 p.m. for a brief Sandoval hearing before we adjourn for the week. 

But our celebration is short lived. Before the press even leaves the courtroom, we learn from push notifications, Twitter feeds, and colleagues that a man has set himself on fire just outside the courthouse. Wanting to stretch my legs, I opt against the elevator. As I descend the 15 floors to the exit, I scroll through some of the grisly scenes on my phone screen. 

Outside, the air still smells of smoke, and everyone—including reporters, camera crews, and police—seems very shaken up. I hear an officer say sadly, “I don’t know how someone could do that to themself.”

By 3:07 p.m., most of the press is back in the overflow room, waiting for the Sandoval hearing to begin, despite the tragedy that unfolded earlier this afternoon just outside the courtroom. 

As Justice Merchan said earlier, “We've come too far in this trial to jeopardize it now.” The show must go on.

Then, in a late-in-the-day twist, we are told that with jury selection now finished, we will all move into the main courtroom with Trump, joining the six pool reporters there.

We rapidly decamp to the courtroom next door and install ourselves in the pews. The police presence is greater here, with the additional Secret Service agents as well, and the atmosphere is noticeably more tense.

At 3:17 p.m., Trump and defense counsel return, and the former president grins at the press, now here in full force.

Two minutes later, Justice Merchan is back. Hoffinger stands immediately to request that the court seal certain exhibits, including contact lists from Cohen's cell phone, as well as AT&T and Verizon phone records, because they comprise many thousands of pages and such personally identifiable information (PII) as Social Security numbers and addresses.

Bove, now in the lead counsel chair, clarifies that the defense does not object to redacting certain PII in the exhibits, but he adds that what's really going on here is that the prosecution has marked as exhibits extremely large documents without regard to whether specific contents are relevant or admissible.

Hoffinger explains that sealing the exhibits would be much more prudent, because the process of making such redactions would be “extremely burdensome.” As an example, the phone contacts list in Michael Cohen's phone contains 39,000 contacts. Another example: There are 17 reports of AT&T and Verizon phone records, and four of them are more than 9,000 pages long.

Bove stands and, with a “gotcha” moment tone, says that Hoffinger’s whole argument has been couched in finding what's relevant in the corpus of documents. But the people are only permitted to offer what’s relevant at trial.

It’s not such a “gotcha” moment for Justice Merchan, who says the prosecution has already identified what's relevant. He thinks redactions are an absurd condition to impose on the prosecution. Bove tries to say something as Justice Merchan is talking, but the judge fires back, “Don't interrupt me.” Justice Merchan tries to continue.

“I’m not interrupting you,” Bove says, interrupting him again.

“Yes you are. Sit down,” Justice Merchan says firmly. “I'm signing the order.” Those exhibits will be sealed. 

Now for the last order of business, the Sandoval hearing begins. A Sandoval hearing examines what misconduct not alleged in the indictment the prosecution is allowed to talk about, and how it’s allowed to talk about it. On Apr. 17, the prosecution submitted a list of “all misconduct and criminal acts of the defendant not charged in the indictment which the People intend to use at trial to impeach the credibility of the defendant,” should Trump choose to testify. We start to go through the list now, entry by entry. 

First up is the recent New York civil fraud trial presided over by Justice Arthur Engoron. Bove does not want the court to permit discussion of the case in cross-examination because he says that the appellate division has stayed relief in significant part.

"What you're describing is no different than what any other defendant feels he needs to do when he takes the stand," Merchan says, unconvinced by Bove's reasoning.

At issue here is the risk that the jury will mistake discussion of the civil trial that Engoron presided over, should it come up in a potential Trump cross-examination, as evidence in this criminal case—a risk that Matthew Colangelo for the prosecution argues is quite low. Bove tries to make an analogy related to Michael Cohen, but Justice Merchan shuts it down and says, “We're not going to mix apples and oranges right now, we're going to stick with this issue.” 

Colangelo explains that during the civil trial, after Trump violated Justice Engoron’s gag order, the judge put Trump on the stand, and the court found that he lied. “It’s hard to think of something more probative than" lying under oath, Colangelo says, “in a courthouse 200 yards from here—if not closer—six months ago.” 

Sensing defeat, Bove moves on to evidence related to the E. Jean Carroll case, which he calls “too attenuated, too far back in time to call into question Trump's credibility in this trial.” Bove wonders out loud what the government's strategy will be in this case—“Are they making arguments about sexual misconduct?” He doesn't think so, as he hasn't heard that yet. “This is a case about documents,” he concludes.

But Colangelo is back up, and he says that the evidence shows that Trump defamed Carroll by lying publicly and “publishing defamatory statements with actual malice,” critical evidence the jury ought to consider in determining his credibility.

Bove finds no luck in the next entry either, the case of Trump v. Clinton in the Southern District of Florida, in which Trump sued Hillary Clinton and associates for orchestrating “a malicious conspiracy to disseminate patently false and injurious information” about Trump and his campaign, “all in the hopes of destroying his life, his political career and rigging the 2016 Presidential Election in favor of Hillary Clinton.” Bove says it’s another situation in which a judicial finding is disputed. Justice Merchan disputes Bove’s characterization of the finding as in “dispute,” and Bove clarifies that he’s talking about the pending appeal. Justice Merchan puts on his glasses as he quotes the court, which wrote, “Here we are confronted with a lawsuit that should never have been filed,” one that is “frivolous” and “in bad faith.” The court calls Trump “a prolific and sophisticated litigant who is repeatedly using the courts to seek revenge on political adversaries.”

Ouch.

“If that's not Sandoval” material, Justice Merchan says, “I don't know what is.”

After similar discussions follow a few more entries, Justice Merchan asks an overarching question to Bove. Several times in some of these cases you dispute the findings, says the judge.

“Is it your position that because a case is appealed or might be appealed that therefore it can't be used in Sandoval?” Justice Merchan asks.

“Not categorically,” Bove says, as he sits back down.

Justice Merchan says that he will reserve decision on Sandoval matters, but we'll have it Monday morning.

Justice Merchan now moves on to a couple more matters he'd like to take up related to the defense’s pre-motion letters. First up is the defense's presidential immunity reargument pre-motion letter from April 16 contending that the courts should preclude a number of exhibits under presidential immunity. The previous motion was denied as untimely, among other reasons, and the defense now argues its timeliness. Justice Merchan’s decision remains the same, and he says Trump could have raised this back when motions in limine were filed. 

Next in line is the defense’s pre-motion letter on a limiting instruction regarding Cohen’s 2018 guilty plea to a FECA (Federal Election Campaign Act) violation and David Pecker’s testimony about American Media Inc.'s non-prosecution agreement. The defense had submitted language to be used, so Steinglass offers his side’s submission orally. Justice Merchan will consider both proposals and will come up with his own decision on the limiting instruction soon.

As Justice Merchan discusses yet more pre-motion letters, he loses his patience. “Defense is literally targeting individual decisions one, by one by one by one with these pre-motion letters,” he says. “There comes a point where you accept my rulings.”

To put a fine point on this, Steinglass raises the defense's April 17 letter about the “Access Hollywood” tape, which he calls a “third bite at the apple.”

So your April 17 letter sought to reargue the clarification I made on April 15 clarifying a March 18 in limine ruling, Merchan asks, rhetorically and exhaustedly.

“This sounds suspiciously like the half an hour we spent debating this on Monday,” Steinglass says when Blanche pushes. Steinglass calls it "just another tactic" and asks the judge to reject it. 

Steinglass understood Justice Merchan's ruling to mean that the “Access Hollywood” tape itself was too prejudicial, because it contained Trump’s voice and person walking off the bus, but that the transcript of the tape was admissible. Justice Merchan said he will reread the transcript from Monday to make sure there’s no misunderstanding. 

Necheles rises for one more issue. “Of course we don't want any delay,” she says, renewing the defense's request to get at least one witness name from the prosecution before Monday.

“Whether you get the name or not, you're not going to delay the trial,” Justice Merchan says sharply.

Steinglass says that unless Justice Merchan orders it, he still won’t grant that courtesy. But he offers two consolation prizes: First, he guarantees that the defense won’t get any time to cross-examine on Monday anyway. And second, he says he will provide one witness name to defense counsel Sunday evening. If those names get released on social media, he warns, that'll never happen again.

Trump stands up abruptly, as if he just remembered he is late for something. 

“Sir, can you please have a seat?” Justice Merchan says to Trump, looking at him sideways and motioning for him to sit down. 

To be fair, it’s been a long week, albeit a successful one, and we’re all a bit antsy to go.

Finally, at 4:28 p.m., Justice Merchan thanks everyone and exits. 

Trump and defense counsel walk out the back doors a few moments later, as the press remains seated. The prosecution leaves shortly after that, out the side door.

As Trump walks into the hallway, reporters shout at him, asking whether he plans to testify.

The former president looks over at the press gaggle and announces, “Yes.”

Then he turns and leaves, without saying another word.

Somewhere, Augustin Sandoval—whose 1974 case in the New York Court of Appeals gave rise to the Sandoval hearing—is rubbing his hands together in anticipation.