Not long after Donald Trump was criminally charged in four state and federal cases last year, many people who want to see the former president held to account expressed an understandable fear: A MAGA mole would sneak onto the jury and then refuse to vote guilty, no matter how damning the evidence.
The resulting hung jury would be just the vindication that Mr. Trump needs. But following Stormy Daniels’s dramatic testimony on Tuesday in Mr. Trump’s New York hush-money case, which delved into graphic detail about what she said was a brief, unpleasant sexual encounter with Mr. Trump in 2006, I am inclined to worry about a more mundane but similarly grave threat: call it the Desensitized Juror.
This person, a decent and upstanding citizen who treats his or her duty with appropriate gravity, could nevertheless decide that all of this tawdriness — cheating on his new wife, seducing Ms. Daniels with false promises of reality-TV stardom and so on — is just Mr. Trump being Mr. Trump. Even if hiding the purpose of the $130,000 payoff to Ms. Daniels violated New York law, the juror might think, so what? Everyone already knows Mr. Trump is a liar and a cad, a womanizer and a cheat. Is this really a serious crime or is it, like so much connected to the Trump lifestyle, just one big tabloid joke?
The tabloid element of the case has been there all along, of course, but it was never more evident than on Tuesday. Again and again, Ms. Daniels testified in much greater detail, and with more editorializing, than was asked of her. Mr. Trump’s lawyers objected often, and when they didn’t, Justice Juan Merchan stepped in himself, testily warning Ms. Daniels more than once to “just answer the questions.”
Prosecutors, who made a calculated and possibly dangerous bet in calling her to the stand, could not have been happy to watch one of their star witnesses get reprimanded over and over by the court. But the judge’s frustration was no surprise; salacious details like the ones Ms. Daniels kept offering can be especially prejudicial to a defendant. For example, Ms. Daniels mentioned that Mr. Trump had not worn a condom during their encounter. In response, the former president’s lawyers requested a mistrial. Justice Merchan denied the request, although he agreed that numerous parts of Ms. Daniels’s testimony were “better left unsaid.”
Even when she left out the details, Ms. Daniels was not always consistent in her testimony. She insisted, for example, that she was not motivated by money and only wanted to tell her story, a less-than-convincing claim given her decision to accept Mr. Trump’s payoff to keep her mouth shut. Mr. Trump’s lawyers took every opportunity they could to highlight these inconsistencies and poke holes in Ms. Daniels’s credibility.
The prosecutors no doubt made their risky decision because it would have been quite strange if they had not brought in Ms. Daniels to testify. Their whole theory of the case is based on Mr. Trump’s reaction to a few minutes with her in a Lake Tahoe hotel room. Jurors are human, and they have common-sense human reactions. What would they think if one of the two central characters in the story didn’t show up to confirm the underlying conduct?
This brings us back to my concern about the impact of Ms. Daniels on the jury. Remember, the prosecution needs all 12 jurors to agree to convict; the defense needs only one to disagree to produce a hung jury and thus a mistrial. So far, the prosecutors have presented a very strong case centered on financial documents and testimony from the people who helped Mr. Trump arrange the payoff. But they have also had to do a lot of explaining about how it all fits together and why it all matters, which risks confusing and exhausting the jurors. Now, with the most garish part of the case front and center, it’s not so hard to imagine one or more jurors throwing up their hands and letting the tabloids sort it out.
I continue to believe strongly in the jury system as a core institution of American self-government and in the integrity of this group of 12 regular New Yorkers. The problem is the damage done to American society over the past nine years, a sense of lowered expectations about politics that affects all of us, including those of us selected for jury duty.
During that period, Mr. Trump upended every reasonable expectation of how a presidential candidate, a president and then an ex-president should behave. In the process, he managed to do exactly what many farsighted people warned he would: inure large parts of the public to his depredations against honesty, integrity and decency. He has, in effect, increased our tolerance for inexcusable behavior by our leaders.
That is a tragedy on several levels. It can be easy to forget how shocking it was when, in October 2016, a tape emerged on which Mr. Trump could be heard years before bragging about grabbing women’s genitals. Top Republicans withdrew their support for their party’s nominee only weeks before the election, and the G.O.P. came achingly close to extracting itself from Trump mania. In that light, it makes sense that Mr. Trump would do whatever he could to keep the Stormy Daniels story out of the news. At the time, only weeks before the election, it really could have been a death blow.
And that would have been the proper outcome. Mr. Trump was seeking the highest office in the country, the most important position of public trust we have. Ms. Daniels’s story, which she would have told at the time but for the payoff, has offered yet another window into his awful treatment of other people, especially women, and the manner in which he sought to keep Americans from knowing about it.
It is essential to remember the unspoken premise underlying the hush-money trial. It is, as even Mr. Trump appeared to understand in 2016, that the character of presidential candidates, shown in their treatment of others, should matters greatly to voters. We don’t know how every member of the jury will vote, but regular American voters will have an opportunity to show that basic decency still matters.
