Courts & Litigation Criminal Justice & the Rule of Law Executive Branch

Seven Down, Eleven to Go in NY Trump Trial Jury Selection

Tyler McBrien
Wednesday, April 17, 2024, 4:32 PM

A dispatch from the first two days of the first criminal trial of a former president.

New York State Supreme Court, Criminal Term, at 100 Centre Street on April 17, 2024. (Photo credit: Tyler McBrien)

Published by The Lawfare Institute
in Cooperation With

Previously on Trump New York Trial Dispatch: "A Trial Date Certain-ish: NY Trump Case Set to Begin on April 15"

April 15, 2024

It’s just after 7:00 a.m. on a warm Monday morning outside of 100 Centre Street in Lower Manhattan. Behind me, someone is speaking Italian. It’s not strange to hear any number of languages in a place as cosmopolitan as New York City—Italian, certainly among them—but this is not your garden-variety European tourist. She’s a journalist, a foreign correspondent, angling to get into the courtroom to cover jury selection in the first criminal trial of a U.S. president before she heads back to Rome on Sunday. 

She’s not alone. Journalists from all over the world have descended on the criminal division of the New York Supreme Court, clamoring for access alongside local journalists to such an extent that the question of how the press would cover this story became a story in and of itself. Another journalist nearby, speaking English this time, mentions he’s one of 45 reporters here from the New York Times. 

But despite the early mornings, uncertainty, and competition, the press is taking it in stride, and a collegial atmosphere permeates. One cheerful journalist holds a heaping paper bag of bagels, “fresh from the oven,” which she passes out. Unfortunately, I don’t get one—about which I’m bitter and feeling uncollegial. 

A lone demonstrator standing in Collect Pond Park, just opposite the courthouse, holds a spray-painted banner that reads “TRUMP CRIMINAL TRIAL,” as though we don’t know why we’re all here. To be fair, she editorializes a bit more on the back of the sign, which reads: “CONVICT TRUMP ALREADY.” Journalists respectfully take turns interviewing her, she being the only protester we’ve got. 

Despite my lack of a bagel, I interpret the apparent camaraderie as a collective understanding that the trial will be a marathon, not a sprint. Before we head in, I see one journalist reading William Faulkner’s “Absalom Absalom.” I remember hearing once that this book holds the Guinness Book of World Records for the longest sentence in English language literature, and I hope we don’t set some kind of record for the longest jury selection process in U.S. history. This trial has enough superlatives already.

At 8:07 a.m., the press heads in. “Two months of this?” a journalist jokes heading through the second magnetometer. The length of the trial is one of many questions on our minds as we make our way through the several layers of security necessary for trying a former president with a Secret Service detail. More pressing is the question of just how someone as famous as Trump can get a fair and impartial jury in New York?

The former president’s motorcade, Secret Service detail and all, pulls up to the courthouse at 8:59 a.m. The New York Times called the courthouse “short on charm,” and, in 2021, ABC7 reported that the "backrooms of the courtrooms are dingy, dusty and dirty." But, for better or worse, 100 Centre Street will be our home—and Trump’s—for the next six to eight weeks. It's quiet, and a bit stuffy, in the press overflow courtroom next door to the action, where I’m seated with most of the press corps. For jury selection, only six pool reporters are allowed in the actual courtroom, with the rest of the seats taken up by potential jurors. 

By 9:17 a.m., Susan Hoffinger, Joshua Steinglass, and Matthew Colangelo for the prosecution walk in and take their seats. Seven minutes later, the advance guard of the defense trickles in—Gedalia Stern, followed by the defendant himself at 9:32 a.m., flanked by Todd Blanche, Emil Bove, and Susan Necheles, whose name is pronounced like a piece of jewelry one wears around one’s neck. Trump, in his signature red tie, takes a seat at the defense table and interlaces his fingers in front of him.

At 9:59 a.m., Justice Juan Merchan enters the courtroom, as we hear, “All rise for the People of the State of New York v. Donald J. Trump.” 

After the parties introduce themselves, Justice Merchan starts with a few “loose ends,” turning to two motions, which are simultaneously pending. They are both simultaneous and repetitive, according to the judge.

He reads from the first, a motion for his recusal, reviewing some of the court’s "offensive" statements mentioned in the brief. The brief quotes Merchan saying that “getting ready for the historic trial is ‘intense’”; that the court is “striving ‘to make sure that I’ve done everything I could to be prepared and to make sure that we dispense justice’”; and that “‘There’s no agenda here .... We want to follow the law.’” Justice Merchan categorizes the rest of the motion’s claims as "a series of inferences, innuendos, and unsupported speculation" and "to say that these claims are attenuated is an understatement."

“There is no basis for recusal,” Justice Merchan says flatly. He reminds the courtroom that a judge is as much obligated not to recuse himself when it's uncalled for, as he is to recuse when it is.

And with that, he delivers a ruling from the bench: Trump’s motion for recusal is denied. 

Now on to a bit of housekeeping. There will be no proceedings on Monday, April 29, and the court will not convene on Wednesdays, as the judge has stated before. This will be the plan for the duration of the trial, barring unforeseen circumstances and delays. Justice Merchan again reassures the parties that observance of Passover, or any religious observance, will not preclude prospective jurors from serving. 

Justice Merchan can't rule yet on requests for recess on Friday, May 17, for Trump to attend his son Barron’s high school graduation, a point which will later become fodder for the former president’s Truth Social feed. The same for another request from a member of the defense team to attend his son’s June 3 graduation; that attorney does not seem to have posted about it on his social media. 

At 10:13 a.m., Justice Merchan wants to hammer out the final details of jury selection. With the first panel of 96 jurors waiting in the wings, this discussion has a “build the plane as you fly it” element to it. 

Recall that Merchan, drawing on his previous experience empaneling a jury in a civil trial in 2022 against the Trump Organization, suggested that potential jurors who raise their hand if they feel they have “an honest, legitimate and good faith reason to believe” they cannot be fair or impartial may be dismissed without further questioning. He laid this out in a letter regarding jury selection on April 8, but Trump objected in a subsequent April 12 letter, proposing his own “hybrid” approach, which up to this point had been light on detail. The defense also took issue with the “asymmetry” of the questionnaire, which favors the prosecution, in Trump’s view.

Both matters now stand between us and hearing from an actual, real live prospective juror. The April 12 letter finally sketched out the contours of the “hybrid” system, which has eluded everyone, so Justice Merchan asks the prosecution to weigh in. On the first issue, Steinglass simply says there's no legal barrier to the court's plan to summarily dismiss jurors who self-identify, and leaves it at that. On the alleged asymmetry of the questionnaire, Steinglass argues, once again, that voir dire is there to select a fair and impartial jury. But more to the point, he says that the questionnaire is fair; that Trump will suffer no prejudice from it; and he calls this motion an “11th hour request”  to further delay the trial. 

Blanche stands to defend his hybrid approach. He's speaking softly, deliberately, with deference toward Justice Merchan. In his proposed system, the self-identification round would proceed in two stages: First, jurors will say if they're unable to serve due to travel, family, job, or religious observance, and then the judge will ask if remaining jurors can be fair and impartial. 

Much to Justice Merchan’s surprise, after Blanche explains the details, he meets no resistance from the prosecution. Justice Merchan says he must have misunderstood it when it was first proposed, which seems like a generous interpretation to me. Nevertheless, with both sides in agreement, and the judge content as well with the defense proposal, there’s a glimmer of hope for a break through the impasse. As for the alleged “asymmetry” of the questionnaire, Justice Merchan calls it “already by far the most exhaustive questionnaire this court has ever used,” which seems to settle the matter. 

The jurors, still waiting in the wings, will wait a bit longer, as Steinglass rises to address a number of issues from the motions in limine in need of clarification. First up is the permissibility of testimony from an August 2015 meeting between so-called “star witness” Michael Cohen and American Media Inc. CEO and National Enquirer Publisher David Pecker, during which the two men hatched the alleged catch-and-kill scheme that lies at the center of the case. 

Cohen and Pecker allegedly agreed in that meeting that the National Enquirer would publish flattering stories about Trump and would also publish negative stories about Trump's opponents. Steinglass says that before publication, Pecker showed these National Enquirer stories to Trump, who was free to amend or block them as he pleased. 

Steinglass wants to enter these stories into the record as evidence. The negative stories include one accusing Ted Cruz of marital infidelity and a family connection to John F. Kennedy’s assassin and one alleging drug abuse on the part of Marco Rubio and his involvement in a sex scandal. 

Chuckles ripple through the press overflow room. The press corps finds the idea of Rubio being involved in a sex scandal to be a matter of mirth.

Steinglass says this evidence is admissible because of the election connection. The “entire point of the Trump Tower meeting was to control the flow of information that reached the electorate” and “to accentuate negative, and exaggerated information harmful to Trump's opponents,” says Steinglass. The prosecution will make this point many times, almost as if to rebrand the case in the public imagination. 

This is an election interference case, Steinglass seems to say, not a mere “hush money” case. 

Some conduct is not in and of itself illegal, but it is if in furtherance of another crime, and Steinglass likens this evidence to the renting of a getaway car for a bank robbery: renting a car is not illegal, but robbing a bank is. This is the election interference connection for the felony step-up. It’s Steinglass’s first analogy of many. The man likes his similes.

Blanche is up now, saying this evidence would do nothing but “confuse the jury.” He says the fact that a newspaper editor meets with a candidate and his team on the timing of articles, nothing is illegal about that; it happens all the time. Blanche also takes issue with the prosecution “hand picking” articles, which run a high risk of prejudicing the jury and have nothing to do with the charged conduct. He fears this will become a sideshow. Though skeptical that these prepublication meetings were conducted intentionally with the falsification of business records down the road in mind, Justice Merchan is satisfied that the probative value of this material exceeds its potential for prejudice, and he declares that he will allow it in.

Steinglass is now discussing the parameters of testimony from Karen McDougal, saying there are “salacious details we have no intent on soliciting unless the door is opened.” He wants to establish that McDougal is a former Playboy model who claimed to have a year-long romantic and sexual relationship with Trump while his wife was pregnant. Blanche rises to object as Trump remains stone-faced amid allegations of extramarital affairs and other “salacious details” are made.

“This is just to embarrass President Trump. It has nothing to do with the trial,” Blanche argues forcefully. “He's not charged with this misconduct ... It's salacious with no value.” Justice Merchan is unmoved—his ruling on the motions in limine stand. However, he will not allow inclusion of the fact that Trump's wife was pregnant and gave birth during the alleged misconduct. He doesn't see the probative value in that.

Trump keeps tapping Blanche on the shoulder to ask or tell him things, as we turn to the now-infamous “Access Hollywood” tape. The prosecution wants to play the audio for jurors so they can hear the words from Trump’s own voice. But first we hear the words in Steinglass’s voice, as he describes the tape and reads a transcript excerpt, including the line about grabbing women’s genitals, which Steinglass calls sexual assault. Trump looks on with a poker face. Excluding the actual words used would mislead the jury, Steinglass argues. He wants to give them “the most accurate and forceful description.”

Blanche pushes back on the inclusion of the “Access Hollywood” tape as evidence. “The People will get everything they need ... from what your honor has already ruled,” he says, calling the tape “extremely salacious evidence” that is “very prejudicial.”

“This is the impetus, this is what led to everything that followed,” Justice Merchan says. “My ruling that we were not to play the tape was, and remains, that the tape itself is so prejudicial to see Mr. Trump depicted, the words coming out of his mouth, the facial expressions, the hand gestures.” The prosecution can talk about the tape, but Justice Merchan doesn't want the jurors to hear Trump's voice.

As Steinglass talks, hints of the prosecution’s strategy start to take shape. The prosecution intends to emphasize then-candidate Trump’s obsession with favorability among women voters, which, in turn, relates to the alleged election interference. Steinglass says the truth is, and the evidence will show, that the Trump campaign and the defendant himself became obsessed with the allegations of sexual assault that surfaced around the time the “Access Hollywood” tape did, shortly before the 2016 election. “These rallies, events, and tweets powerfully demonstrate the extent to which Mr. Trump was preoccupied with these allegations and concerned about the impact on voters,” Steinglass says as he plays a clip from a campaign rally and reads Trump’s tweets from the time, which deny the allegations and denigrate the accusers.

“This concern of losing female voters was the catalyst that led to the defendant” to kill the Stormy Daniels story, Steinglass says. “The proverbial straw that broke the camel's back.” Blanche rises again to call this a "prejudicial sideshow," based on "complete hearsay” and “unproven accusations.” 

Justice Merchan is sympathetic and denies the prosecution's request to bring evidence of these three other allegations of misconduct. He doesn't want to “prejudice the defendant on the basis of a rumor.”

Now on to evidence that Trump tried to dissuade witnesses, namely Michael Cohen, from cooperating with law enforcement, of which the court had previously required an offer of proof admitting. Steinglass walks us through a series of Trump’s tweets that were meant to keep Cohen in Trump's corner and convince him not to flip on him, which worked for several months. The prosecution wants to contextualize why Cohen would deny wrongdoing for as long as he did. Another series of tweets are meant to show when Trump finally turned on Cohen. “If anyone is looking for a good lawyer, I strongly advise you don't retain the services of Michael Cohen,” reads one, which gets the biggest laugh of the day so far from the press corps in the overflow room. Steinglass says that this evidence can't be prejudicial and should be admitted, because “these are the defendant's own words, publicly broadcast, tweeted out for the world to see.” He calls them “efforts to intimidate witnesses into staying quiet, and therefore relate to his consciousness of guilt.”

At 11:18 a.m., Justice Merchan calls for a 15-minute recess. As Trump leaves the courtroom, he scans a row of pool reporters and purses his lips.

Both sides are back, and Justice Merchan returns to the bench. It’s 11:36 a.m. on the first day of jury selection, and we still haven’t seen a single juror. Before the break, Steinglass had indicated that the prosecution plans to ask Justice Merchan to hold Trump in contempt of court for violating the gag order, but we’ll have to wait on that as well. 

Justice Merchan now reads into the record his previous ruling on the admissibility of Cohen's guilty plea: “Testimony of the underlying facts of the guilty plea are permitted as long as the proper foundation is laid.” He seems confused as to why there's confusion from the defense. “I can't reverse myself,” he says.

Picking a jury will have to wait longer still, as Blanche raises procedural, “but significant,” issues, notably the process by which the defense must file a one-page letter seeking permission to file a motion. Justice Merchan reminds everyone why he ordered the pre-motion letter system in the first place. “We were being absolutely inundated with motions, many of which, frankly, were close to frivolous, if not frivolous,” he says. He jokes that, while the defense knows that the pre-motion letters are restricted to one page, he notices that the font has been getting increasingly smaller. This gets a big laugh from the press. Loosening up a bit, he then adds winkingly, “All right, gentlemen, sit down, relax ... There's more important work to be done.” 

He mentions the hundreds of jurors, still unseen, who are waiting for us.

He then jumps ahead to the pretrial checklist. The proposed time limit for each side’s voir dire is 15 minutes, but Blanche asks for 30 minutes for each  side, and the prosecution agrees. I hear a journalist behind me say, exhaustedly, “Jesus Christ!” 

Justice Merchan works his way through the rest of the list, including some boilerplate instruction on prepping and examining witnesses. It's routine, as the parties’ bored faces attest.

The judge now reminds Trump about “Parker warnings,” which are not unique to this unique defendant. “You have the right to be present in court at any proceeding including, in particular, a hearing and trial,” he reads aloud. “Do you understand?” The former president nods and mouths, “Yes.” 

Trump’s presence at the trial is both his constitutional right, as well as a requirement under New York’s rules of criminal procedure (CPL § 260.20). These rules exist to protect defendants’ rights to hear the cases against them and to confront witnesses. Trump will later turn this on its head by implying in this post and others that it’s unfair for Justice Merchan to require his presence.

The prosecution now addresses its promised contempt-of-court motion, in which it will ask the court to impose a $1,000 sanction for each of Trump’s alleged gag order violations, to order him to remove offending posts, and to remind him that further violations could result in jail time. To illustrate its point, the prosecution reads several examples from Trump’s social media feed, including a post that he had made while within the courtroom itself before the brief recess. They also argue that Trump knowingly violated the gag order, because he posted about the order as well, several times. As Blanche rises to argue that the posts do not target specific individuals but, rather, offer general reactions to “salacious repeated attacks by these witnesses,” Justice Merchan watches him, unmoved. 

It’s 12:25 p.m., and the jurors, whom we still haven’t seen, have already been dismissed for lunch, so we are too. 

A little over an hour later, Justice Merchan is back on the bench and announces that he’ll hold a hearing on the prosecution’s contempt-of-court motion on April 24, which he later changes to April 23 at 9:30 a.m. He seems eager to bring in the first 96 panelists, but it appears as if we're having a brief Sandoval hearing first.

Blanche discusses the late-breaking documents from the Southern District of New York last month, but Steinglass fires back that the volume of material hasn't prohibited the defense from filing thousands of pages of frivolous motions.

“That's completely false,” Blanche says at the accusation, but the judge lays the hammer down.

He gives the defense 24 hours to identify exhibits, otherwise they'll be precluded from trial. “Let's not go over the 200,000 pieces of paper,” says Merchan. “We know that it's not really 200,000 pieces of paper.”

Relenting on that point, Blanche asks about the names of the jurors, and how the defense will “get them.” Justice Merchan says he will hand each side one copy of the list of names of the first panel of 96 jurors but warns, “I'm directing you now: that copy is not to be photographed or duplicated in any way shape or form.” After the panel, they're to return the list to the court. 

Ever punctual, the judge makes a request to counsel not to encourage potential jurors to seek out sidebar conversations, because “once one juror has an opportunity to come up to the bench, everyone wants to come up to the bench.” Trump and Blanche continue to converse as we wait for the first panel of jurors, both waving their arms at certain points. The press pool can hear Trump's voice but can't make out what he's saying.

At 2:05 p.m., the prospective jurors begin going through security. It's hot and stuffy in the overflow courtroom, and it seems to be settling in among the press that this process will take two weeks or more. “I'm sweatin' like I'm on trial,” I hear one journalist nearby say. To be honest, so am I.

Justice Merchan returns to the bench at 2:25 p.m. The first panel of 96 file in, and some sit next to Trump aides Jason Miller and Margo Martin, who have been in the back row of the courtroom since the morning. After the jurors are sworn in, Justice Merchan explains what the trial involves, his role, and the role of the jury. “You're about to participate in a trial by jury,” the judge says. “The system of trial by jury is one of the cornerstones of our judicial system.” 

Trump cranes his neck to get a look at the pool as they enter the jury box, whispering to Blanche as he does. Many prospective panelists stretch their necks too, in order to get a look at the famous defendant, and one woman toward the back of the room giggles and puts her hand over her mouth. Trump remains expressionless as the judge reads out, “The People of the State of NY v. Donald J. Trump.”

“As a juror, you are asked to make a very important decision about another person,” Justice Merchan says solemnly, as he describes a juror's duties and responsibility to be fair, impartial, and unbiased. Trump, arms crossed, mostly looks at Justice Merchan as the judge gives an overview of the presumption of innocence, the burden of proof, and proof beyond a reasonable doubt—but occasionally he looks toward the prospective jury pool, which represents a diverse cross-section of Manhattanites.

The judge reads a list of people involved in the case, though not necessarily as witnesses. These include Michael Cohen, Kellyanne Conway, Robert Costello, Stormy Daniels, Donald Trump, Rudy Giuliani, Hope Hicks, Dylan Howard, Dewitt Hutchins, Jared Kushner, Karen McDougal, David Pecker, Donald Trump Jr., Ivanka Trump, Melania Trump, and Allen Weisselberg, among others. 

Trump’s eyes are closed, though it’s not clear whether or not he's sleeping, as some reporters claimed earlier in the day. In fact, Trump's alleged mid-courtroom napping has been the subject of some debate among the press corps. Does closing one’s eyes necessarily constitute sleeping, or would “dozing” be a more apt description? Let it never be said that the press corps isn’t dedicated to accurate reporting.

Justice Merchan asks panelists to raise their hand if they can't serve or be fair and impartial, and all of a sudden, we see the hybrid selection system in action. More than half of the panel says they can’t be fair and impartial, including more than two dozen white women, and Justice Merchan excuses them all. Then another nine, who could not serve for other reasons, get excuses—leaving just 34 of the original 96 available for possible service. He will now randomly select 18 (which includes 12 jurors and 6 alternates) to sit in the jury box to answer the 42-item jury questionnaire.

Because this is an anonymous jury, panelists receive a letter and number for identification. Seat 1 is B397. Seat 2 is B38. Seat 3 is B220. "Bingo!" a reporter behind me jokes. The list goes on until the box is full. 

The first juror, a resident of Midtown East, begins to read her answers, most of which require only a “yes” or “no.” As she offers her monosyllabic responses, she sounds bored. Trump appears to have either the questionnaire or a copy of juror names in front of him, and he follows along and scrutinizes the paper closely. Seat 2, he's a marketing creative director, also lives in Midtown. The first juror is in venture capital. So far, a very Manhattan pair.

The process continues, and Justice Merchan occasionally excuses jurors who say they have strong opinions or firmly held beliefs about Trump. One pool reporter hears a prospective juror leaving the courtroom saying, “I just couldn't do it.”

At 3:41 p.m., Justice Merchan calls for a short recess, and we’re all back by 3:58 p.m. “Welcome back, jurors,” the judge says, continuing with the next seat. Before answering the questionnaire, the prospective juror wants to be excused because his child is getting married in Seattle. “Congratulations, and good luck,” the judge says good-naturedly, excusing the non-juror, who will have a hell of an anecdote to sneak into his father-of-the-groom speech.

Jurors work their way through the questionnaire until Justice Merchan stops at 4:28 p.m.—he’s serious about ending on time, and it seems he'll be just as serious about starting again tomorrow morning at 9:30 a.m. sharp.

The prospective jurors file out—only 32 of the original 96, but Blanche wants to address one more thing. He says that the campaign has taken pains to schedule events on Wednesdays and he asks Justice Merchan if Trump can be excused from any hearings that take place on Wednesdays, when the jury is in recess. The judge says he will take this into consideration.

Blanche now raises a request that Trump attend the Supreme Court argument in his immunity case. “I think we've accommodated the defense's scheduling requests enough already,” Steinglass says, but Justice Merchan responds that a Supreme Court argument is a big deal.

Blanche perhaps pushes his luck a bit too far when he replies that the former president shouldn’t have to be here, and Justice Merchan fires back at him, “You don't think we should be here at all right now?” He then says, “Let's move along from that objection. I've already ruled on that." 

At 4:39 p.m., all rise and Justice Merchan leaves the bench. I peel myself off the sticky courtroom pew to get some much-needed fresh air.

April 16, 2024

I arrive at the courthouse just after 7:00 a.m. It promises to be another beautiful day, not that any of the press will be outside to enjoy it. I scan the line of reporters—no sign of bagels today.  

The previous day’s debate of whether the former president dozed off has only intensified overnight on social media and on cable news. A 7:51 a.m. post from Truth Social offers proof of life or, rather, proof of consciousness. Right now at least, he seems to be awake.

We proceed through the now-familiar magnetometers into the overflow room, and Trump’s motorcade arrives at the courthouse at 8:51 a.m. Steinglass, Hoffinger, and Colangelo arrive for the prosecution at 9:20 a.m., and Trump takes his seat at the defense table alongside Blanche, Bove, and Necheles. Trump aide Jason Miller takes a seat in the back row. 

On his way in, Trump offered a pool reporter his view of the case. “I was paying a lawyer and marked it down as a legal expense,” he said, speaking about the business records he is accused of falsifying. “That's exactly what it was. And you get indicted over that?” 

At 9:31 a.m., prospective jurors proceed through security. Trump chats with Bove and Blanche, who is smiling and laughing as he hands Trump a document—likely the jury questionnaire. But only moments later Trump closes his eyes. It seems he’s not troubled by any allegations, be they falsifying business records or sleeping in a courtroom at his own trial.

Justice Merchan enters at 9:45 a.m. We all rise, as the judge comes in and asks everyone to be seated, and the parties introduce themselves. The punctual Justice Merchan apologizes for starting late, explaining that we're waiting on three jurors, two of whom were in the box when we adjourned yesterday. Also, the juror in Seat 10 is sick with flu-like symptoms, though no COVID was detected. Justice Merchan excuses her in absentia without objection.

At 9:56 a.m., a slightly peeved Justice Merchan greets the jurors good morning, welcomes them back, apologizes for the late start, and pleads with them to arrive on time. Replacement jurors file into the box to replace the tardy ones, and two swap seats—it’s musical chairs in the jury box so far today. Trump turns his head to check out the new arrivals, apparently sizing them up.

Eventually, we settle back into the familiar rhythm of the questionnaire. B354, a NoMad resident, is now in Seat 10 and resumes answering the podcasting question. If he gets bored every once in a while, he says, he'll listen to Barstool Sports. To Question 16, he says that all his friends and close friends are mainly finance and accounting professionals—another unsurprising reminder that we're in Manhattan.

We move on to Seat 11, but before even answering the questions, the juror says that she has been thinking since yesterday and came to the conclusion that she can't be impartial or unbiased. She is dismissed without objection. Juror B311 takes her place, but before he begins, he mentions that he has a wedding to attend on June 6—the best man at his wedding is getting married. The justice system is foiled again by wedding season. 

As the parties churn through jurors, Trump looks at each one who enters or leaves the box, his gaze following each dismissed juror up to the point at which the juror exits the well.

Answering Question 17, one juror mentions that she dated a lawyer once. “It ended...fine,” she adds, scoring a big laugh from the press overflow room, maybe the biggest laugh yet of the trial. To the question about whether she has had jury duty before, one juror thinks she may have, then adds, “But this is my first time like this.” No kidding. 

Another panelist asks whether a wedding in September would conflict with the trial. Justice Merchan and counsel laugh, as the judge shakes his head no. God help us all if we’re still here by September, everyone is likely thinking. 

My phone buzzes as Trump's Truth Social feed continues to populate with posts. But when I get notifications, I notice that he's still looking at the questionnaire—either there's a delay and he scheduled his posts ahead of time, or someone else who has access to his account is posting on his behalf, perhaps Dan Scavino.

At one point, we have our first Trump reader, a juror who claims to have read “The Art of the Deal,” and, he adds, “I wanna say… 'How to Get Rich?' Is that correct?" Trump smirks and nods slightly.

I can see one of the sketch artists from my vantage point in the overflow courtroom. For her current tableau, she has chosen to depict the now-familiar scene of Trump with his eyes closed, sitting back in his chair.   

Finally, by 11:36 a.m. the jury box is full and the prosecution begins voir dire. The 30-minute timer begins as Steinglass introduces himself. "Let's start with the obvious," Steinglass says, talking about Trump the president and candidate. "We don't expect you to be living under a rock for the past eight years or the past 30 years." He says the state doesn’t care who you're voting for—instead, it's about whether Trump broke the law. "Can you promise to do that?” asks Steinglass. “To follow the judge's instructions on what we have to prove to find the defendant guilty? In other words, does anyone feel that because of the defendant's position we have to prove more than the law requires?" He cold calls B133. She says that she doesn't think it matters what her political beliefs are or how she feels about the defendant. She's going to listen to the facts of the case.

Trump watches on.

B330 now has the mic. She’s a public servant who built her entire career on trying to serve the city she lives in, and that this is an extension of that. Steinglass nods along encouragingly, and thanks her before pressing her about an answer she gave yesterday about campaign finance limits. "I'm not actively pursuing those opinions" she says, but elaborates that it's unfortunate how much money goes into campaigns. B146 agrees: “Because of the particulars of this case, it doesn't have anything to do with my political inclinations, or however I feel about the defendant.”

“That's a perfect example,” Steinglass says, “because this case isn't about whether you like Donald Trump, it's about the rule of law.” He doesn't expect jurors not to have heard about the case or to have discussed it with friends, but he does expect an open mind. “Everyone and their mother has an opinion about this case and what the outcome should be,” Steinglass says, but “unlike the opinionated masses,” the jury will have two things they don't: (1) access to evidence and testimony; and (2) the judge's instruction on the law.

Steinglass mentions that inconsistencies may arise between witness testimonies, but this should be expected. He makes an analogy to baseball, how well-meaning people from different vantage points may dispute an umpire's call. “Minor discrepancies and unimportant details like that don't speak to the truth,” he says. He also mentions the “baggage” that some witnesses may have, including a “tabloid publisher, an adult film star, and a former lawyer for Mr Trump named Michael Cohen who has pled guilty for several federal crimes including lying to Congress.” It sounds like the setup to a joke about that trio walking into a bar. Some of these witnesses were given immunity in this case in order to get them to come clean, says Steinglass, and he asks whether jurors will "shut their ears" to these witnesses after learning this. 

Though no one voices concerns, Steinglass offers another hypothetical, of “Jack and Jill” robbing a bank. His voice is accessible, almost welcoming in a teacherly way. He's nodding a lot, cracking a few jokes, and trying to come across as relatable, it seems. He says the case is neither a referendum on whether they like Trump, nor is it a referendum on whether they like the witnesses. “Can you separate believability from likability?” Steinglass asks.

We're now getting into some of the legal technicalities, as Steinglass explains the concept of “accessorial liability,” and asks if anyone has a problem with that, giving yet another analogy: “let's say a husband hires a hitman.” Setting aside the hitman and the culpable husband, Steinglass explains the importance of determining Trump's intent in making or causing the false entries in his business records. Though we can't get in someone's head or read their mind, discerning intent is essential because it’s an element of so many crimes. What were Trump and his cohorts doing or saying as the truth began to come out? What was the context in which they were taking place? Steinglass offers another example—someone honking at you as you cross the street—to help figure out intent.

Justice Merchan cuts in and asks whether Steinglass is just about done. Finally, the prosecutor reminds the jury that it's his burden to prove beyond a reasonable doubt Trump's guilt in this case. 

Steinglass is done, and Blanche asks for a “very quick sidebar,” which Justice Merchan grants in the form of a “very quick 10-minute recess.” Perhaps it has to do with the hitman analogy—a pool reporter notes that some of Trump's attorneys looked annoyed when Steinglass made it. Before gaveling us to recess, Justice Merchan discusses Trump’s right and wish to be present at sidebars. Apparently Trump has changed his mind since yesterday and will now waive his right.

At 12:13 p.m., Trump files back into the courtroom, giving a thumbs-up to the pool reporters who asked how it's going. The jurors file in too, and Justice Merchan says pointedly, “Welcome back, jurors, and thank you for being so prompt.”

Blanche takes the lectern now, introducing himself, co-counsel, and his client, Donald Trump. Blanche immediately goes after Steinglass’s many cherished similes. “This isn't a baseball game,” he says. “This is extraordinarily serious.”

"We all know that every one of you knows President Trump," Blanche continues—from before Trump was president, during, and since. He asks generally for juror “opinion” of the defendant, beginning with B288.

It turns out, B288 doesn't have an opinion of Trump, at least “not in this courtroom.” She says, “He will be treated like anyone else, and no one is above the law.” Blanche asks about her opinion of Trump outside this courtroom, as she was walking into this. “I didn't even know I was walking into this,” she says, and Blanche laughs. Another juror chimes in: “Obviously I know about Trump because I'm a female, and he has targeted females.” She says that she has heard from others that “he doesn't treat females correctly, stuff like that.”

Blanche questions a juror who's a prosecutor, though in a different borough. The juror says it “boils down” to whether he can listen to the laws given by the judge. He adds, “Up to this point, [Trump's] proven innocent.” The prosecutor-juror has friends in law enforcement who are fairly pro-Trump, but he doesn't follow national politics that much. Now B113, who said yesterday that no one is above the law, not the president, not a janitor, not anyone, has the mic. “What I think about [Trump] outside this room has no bearing,” he says. “If we were sitting in a bar, I'd be happy to tell you, but in this room how I feel about Trump is not important.”

We're jumping around quickly now, as the mic changes hands like a hot potato. “I was a big fan of The Apprentice when I was watching in middle school at the time,” one younger juror says, which gets a chuckle from Trump. Another juror says she tries to stay in the middle ground, sees a lot “on both sides,” and tries neither to make friends nor enemies over politics. Blanche reassures everyone that he's not asking about their politics.

Despite Blanche’s repeated attempts, all the jurors so far seem very reluctant to give their opinion of Trump, repeatedly answering that it’s not relevant. “I agree with the others in separating the politics and the person,” says one juror. 

“Feelings are not facts,” says a juror originally from Mexico, who later became a U.S. citizen. “I'm very grateful to be an American, and that happened the first year [Trump] was president.”

“I find him fascinating,” says another juror. “He walks into a room and just sets people off.” Trump smiles and chuckles to himself. “Um, alright, thank you,” Blanche says a bit awkwardly, and the press laughs now too.

This seems to open the jurors up a bit more about giving their opinion of the defendant. “Trump has been a notable figure in real estate as a developer, there's very little we probably agree on policy-wise, sometimes I get frustrated with it,” says one woman in the jury box. 

To the next juror, Blanche says he knows it can be difficult to set your opinion aside, but—“I don't think it's difficult, not to cut you off,” she says, cutting Blanche off. She says she likes how Trump speaks his mind, but she doesn't have a strong opinion on him either way.

Blanche is running out of time, and he asks whether anyone is getting the news of Trump's other cases, in jurisdictions other than New York, here for the first time. One juror, B374, raises a hand in the affirmative.

Trump is quite engaged now, looking at each juror in the box as they answer Blanche's questions. The prosecution quietly takes notes.

Blanche ends by reminding the jury that the burden of proof is on the prosecution, not Trump. “We could literally sit here and do nothing,” he says, then asks if jurors can accept the burden from now until the end that Trump is innocent. (I assume that “until proven guilty” is assumed, but he doesn’t say it explicitly.)

One last juror began to speak animatedly, and Blanche engages her without passing her the microphone, so we can't hear it in the overflow room. “I don't think I could've said it better myself,” Blanche replies to the mystery juror, and the press laughs painfully at the irony.

Blanche wraps up and cedes the lectern, and Justice Merchan asks the jurors to step out while counsel reviews their notes and makes strike decisions for a few minutes. 

It's quiet in the press overflow courtroom, with only the sound of typing, a few hushed conversations, and keys jangling on the belts of the officers monitoring the courtroom for any prohibited activities: selfies, eating candy, recording, and the like.

The jurors return, but it’s clear that the parties are not finished with their notes, so we break for lunch. 

At 2:15 p.m. on the dot, per Justice Merchan’s instructions, counsel is back in the courtroom, but the jurors have been kept away to allow the parties to raise their challenges for cause. Each side gets an unlimited number of these, with peremptory challenges limited to 10 per side for this class of felony. 

For seats 1-12, the prosecution raises no challenges, but Blanche wants to start with Seat 1. According to Blanche, she has “a series of extraordinarily hostile Facebook posts,” which run contrary to her answers in voir dire; Justice Merchan asks to see them.  

“I'm not sure, did you hand me the right thing?” he asks, scrutinizing a piece of paper that appears to contain two screengrabs, one of which seemingly depicts a group of people in celebration on the streets of New York. “Show me the bias,” he says calmly to Blanche, who explains that this is someone who thought it significant and important enough to take and post video of a celebration at Trump's defeat. 

Still unconvinced, Justice Merchan asks how Blanche can confirm this is from the juror's account, and Blanche says something about open source. "So by name?" Justice Merchan asks, but Blanche says no, just the information provided and the face. Still, Justice Merchan isn’t convinced that this is conclusively an anti-Trump celebration, nor that the juror was definitely there, so she is invited back into the room for clarifying questions. 

Before she returns, the judge warns that he doesn't want this to be a cross-examination—only a clarification regarding what this is and why it is or isn't consistent with what her answers. In other words, it's not another opportunity to voir dire her.

She's back in the courtroom, confirming that the video is from her Facebook page circa the 2020 presidential election. She had gone to move her car for alternate-side-of-the-street parking (a very New York answer), and when she saw people dancing, it reminded her of the 7 p.m. cheer for frontline workers during COVID (another very New York answer). She then reads between the lines—whether or not she has bias. She understands implicit biases exist, she says, but regardless of her thoughts about anyone or anything political, the job of a juror is to understand the facts of a trial.

When she leaves, Justice Merchan turns sternly to the defense, saying that he heard Trump muttering audibly in the direction of the juror while she was at the podium moments ago. The judge’s voice rises as he makes it “crystal clear” that he “won't tolerate anything of the sort.” Blanche whispers to Trump, who nods.

Steinglass rises, and “notwithstanding the impropriety of trolling the internet,” clarifies that the standard to strike is a “highly unfavorable” view of the defendant, which Steinglass passionately argues this juror did not convey.

But Justice Merchan cuts him off. “We're not going to go back and forth. This is not going to turn into an appellate argument.” He's going to hear each side quickly and then rule. “I don't want a juror on this panel who lies to us, who misleads us as to his or her views” about Trump, he says. Her voice and demeanor lent her credibility in the judge’s eyes. This is the “unequivocal assurance” Justice Merchan needs to deny the challenge, which he does. 

Blanche now moves to challenge the juror in seat 2, who either tweeted or retweeted something that said, “Get him out, and lock him up,” a reference to Trump. Before the juror comes in for clarification, Steinglass expresses confusion as to how the defense is determining whose Facebook account this is, and how the research is conducted. Justice Merchan returns to Blanche's voir dire question, "What is your opinion of Trump?" which he calls "really problematic.” Though he didn't stop it in voir dire, because there were no objections from prosecution, he’s concerned about it now. "‘What is your opinion?’—I really don't know what that's asking," Justice Merchan tells Blanche, who says it's broad by design to identify an opinion or bias independent of the facts of the case.

The juror confirms the post is his but firmly reiterates his belief that he can remain unbiased. He leaves, and Justice Merchan now reads the full post: "Good news!! Trump lost his court battle and his unlawful travel ban!!! Get him out and lock him up." Justice Merchan mentions he would have been fine with it had the post ended at “travel ban,” but the desire to “lock him up” convinces the judge to grant the challenge for cause. 

We continue to the juror in seat 3, which Blanche also moves to challenge because of an off-color social media post made by the juror’s husband. Justice Merchan reads a description of it into the record, with apologies. The post depicts Barack Obama and Trump, with the caption: "I don't think this is what they meant by ‘Orange is the New Black.’" He’s much less inclined to allow a challenge for a more than eight-year-old post by a juror's spouse. As he denies the challenge, he says, “Honestly if this is the worst thing you were able to find about this juror ... then it gives me confidence that this juror can be [fair and impartial].”

The pace has quickened unexpectedly, and the mood in the overflow room, which is much less hot today, lifts. We may just get a jury yet. 

After a round of peremptory challenges, Merchan takes stock of the survivors. At 3:15 p.m., we officially have our first three jurors, and by 3:36 p.m., we have three more. B400 is Juror 1 and foreperson; B280 is Juror 2; B381 is Juror 3; B89 is Juror 4; B374 is Juror 5; and B297 is Juror 6. By 3:45 p.m., they are all sworn in. “This will be your permanent seat for the duration of the trial,” the judge says, and asks them to plan on returning on Monday at 9:30 a.m. for opening statements. This morning, such a request would seem idealistic at best, but now, it doesn’t sound like such a crazy request after all.

Only six potential jurors remain from panel one, and they enter the box to work through the questionnaire. Two are excused immediately, and the rest sit for an abbreviated voir dire, only 15 minutes a side this time. It’s getting late. After Hoffinger leaves the lectern for the prosecution, Blanche apologizes for being the last person to talk to them after a long day.

The remaining panelists step out as counsel reviews their notes. It’s now 5:34 p.m. At the buzzer, we have our seventh juror: B269. Justice Merchan tells the additional juror he's hopeful that by Monday morning, "We'll be ready to go." At this point, I think we’re all feeling pretty hopeful. 

At 5:37 p.m., we adjourn for the day. After 48 hours, 96 panelists, 42-questionnaire questions, and zero bagels, we have our first seven jurors. Seven down, 11 to go. 

Read the next Trump New York Trial Dispatch, "And We Have a Jury—Faster than Expected"

Tyler McBrien is the managing editor of Lawfare. He previously worked as an editor with the Council on Foreign Relations and a Princeton in Africa Fellow with Equal Education in South Africa, and holds an MA in international relations from the University of Chicago.

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