Litman: Trump's hush money trial is underway despite his antics. Don't expect him to give up

After a pretrial period replete with juvenile tantrums, nonstarter attempts to delay the proceedings, and savage attacks on prosecutors, the presiding judge and New Yorkers in general, Donald Trump is about to face the men and women who will decide whether he is guilty of 34 felony charges.

With the start of his historic hush money trial in Manhattan on Monday, the former president might be expected to abandon these so far unsuccessful tactics. But don’t bet on it.

The trial’s opening act will likely feature much the same brand of petulance and vituperation from the defendant, now redirected to the jury selection process.

Expect Trump to beat the same drum he has for several months, savaging anyone within legal reach — that is, not expressly off limits under the gag orders Justice Juan M. Merchan has imposed — and playing the martyr suffering for his followers at the hands of the anti-MAGA elite.

Even as he faces the tangible prospect of a conviction and prison sentence — though appeals could take several years — his strategy will continue to be more political than legal. He’s hoping to win the presidency and then figure out how to clean up the various train wrecks left in his path.

To begin with, that means Trump and his legal team can be expected to rail at Merchan’s decisions about whom to seat on the jury.

Like most jurisdictions, Manhattan follows a set of rules that impose a rigorous strategy on the litigants. Each side has 10 golden tickets known as peremptory challenges, which can be used to exclude a prospective juror for any or no reason (so long as it is not unconstitutionally based on race). In addition, each side can argue for an unlimited number of challenges “for cause.”

The latter are for jurors the litigants argue are unfit to serve for any number of reasons. They could have a close relationship with a party or lawyer in the case, personal experience with the type of crime alleged or some other conflict or bias. In general, the court must agree that they are incapable of carrying out the juror’s core responsibility of applying the law fairly to the evidence.

The prosecution and defense will have disparate strategies. The prosecution will want reasonable and persuadable people who are able to collaborate collegially and come to a consensus. Their ideal candidate may be along the lines of a well-educated professional.

Trump, meanwhile, has little prospect of acquittal, so his team will search for a juror willing to buck the other 11 no matter how strong their consensus. That means a maverick whose life choices reflect indifference or even antipathy toward the crowd.

Given a defendant of Trump’s notoriety, the jury will inevitably include people with strong views about him. The quest of the jury selection process is not for people who have no views about the former president but rather those who can set aside whatever personal views they have and render a judgment based on the evidence and the law.

That means potential jurors may present themselves and express views — including negative views about Trump — but, on questioning from the judge and prosecutor, aver that they can apply the law and reach a verdict fairly.

Even if Trump’s side argues that a juror is inclined to convict, the judge may side with prosecutors and conclude that they can be trusted to do their duty. And then Trump’s counsel will have to decide whether to use one of their precious peremptory challenges. Eventually, they will be forced to accept jurors they don’t like.

Such losing arguments will be more fuel for Trump’s eternal fire of victimhood and grievance, and we can expect him to leverage them as supposed proof of the deep state conspiracy to take him down. And if his complaints cross the lines drawn by Merchan’s gag orders, they could set up an ancillary set of bitter legal battles. Prosecutors have already moved to have Trump held in contempt for incendiary social media messages on the eve and at the start of the trial.

Trump’s political strategy has always been in tension with his legal vulnerability, leading him to vilify the judges presiding over his cases and essentially dare them to hold him in contempt. Now that a jury is sitting in judgment of his conduct, that strategy will go from dubious to asinine. Still, he hasn’t given us any reason to expect him to abandon it.

Look for the jury selection process and the trial to feature more of Trump’s tantrums in court and tirades on the courthouse steps, sorely trying the patience of all involved, not least the judge.

Harry Litman is the host of the “Talking Feds” podcast and the Talking San Diego speaker series. @harrylitman

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