David Cay Johnston: "Trump's bad behavior is going to cost him big in the hush-money trial"

Donald Trump returns today to a Manhattan courtroom where his attorneys are set to conclude their defense in the ex-president’s election interference trial. Trump did not testify in his own defense. 

As leading historian Heather Cox Richardson notes in her newsletter: "Trump's refusal to take the stand encapsulates the MAGA approach to politics. Since the 2020 presidential election, he and his surrogates have made repeated accusations and statements about how the system is rigged against them and alleged there is evidence that proves them right. Crucially, they make those arguments only in front of television cameras or on podcasts and radio. They refuse to make them under oath in a court of law, where there are penalties for lying." 

Donald Trump’s three other criminal trials have encountered significant delays. This means that the only chance to hold Trump somewhat responsible for his decades-long crime spree is a lurid hush-money trial. Public opinion polls and other research show that a guilty conviction in the hush-money trial (or the other three criminal trials) may sway enough Americans to either vote against or otherwise not support Trump in the 2024 election. Many legal experts have concluded that it is much more likely than not, given the extreme preponderance of the evidence and lacking quality of his defense, that Donald Trump will be found guilty in this first, and perhaps only, criminal trial.

That the future of America’s multiracial democracy could ultimately be decided by a jury’s decision in a hush-money trial, is a condemnation of America’s political culture and larger society. Such a reality should cause all reasonable Americans a great amount of anxiety and concern about the future of their country and its democracy.

Ultimately, Donald Trump’s criminal trial and possible conviction should not be celebrated. That the country elected such a man who was and is demonstrably unfit for the presidency (and who is trying to take back the White House and is now tied with President Biden in the early 2024 election polls) should be a source of national shame and embarrassment.

In an attempt to make better sense of Donald Trump’s hush-money trial, what happens next with the jury and sentencing, if the much-discussed “walls” have finally closed in on Trump and how the corrupt ex-president is processing this reality, and the possibilities of violence by political cultists, I recently spoke with David Cay Johnston. He is a Pulitzer Prize-winning investigative reporter and bestselling author who teaches at Syracuse University College of Law, although he is not a lawyer. He has written three books about Donald Trump, who Johnston has covered for 36 years.

This interview has been lightly edited for length and clarity: 

Given your decades of experience with Donald Trump, how are you feeling given the imminent verdict in the hush-money trial, and the historic nature of these events more broadly? How are you making sense of this?

Donald Trump hurt his own cause during his hush-money trial. Trump did much the same thing during the E. Jean Carroll defamation trial. Instead of accepting the advice of his counsel — and there's a reason we refer to lawyers as "counsel" — he told them what to do. You could see this in the cross-examinations of both Stormy Daniels and Michael Cohen. Instead of asking the questions that would hurt their claims and credibility in front of the jury and do some real damage, and then sitting down, Trump's attorneys went on and on and on. In the process, they created opportunities that were taken advantage of by both Daniels and Cohen to damage Donald Trump. Trump clearly ordered his attorneys to take that approach.

In my opinion, Donald Trump's conviction is as close to a certainty as you will ever get in a trial. I'm not surprised that he did not take the stand. Trump would never do that. His lawyers would have told him that it was suicide. And had Trump taken the stand and testified he would have absolutely talked himself straight into a conviction. His whole life is built on lies, and he can't keep those lies straight.

What about your emotions?

For me, this is all professional. All I want to do is hold Trump responsible for what he has done. I don't really care about him personally. That's always been my attitude. I cover Donald Trump because 36 years ago, I realized that this guy is going to be a big force in American culture. I started building files on him and carefully covering him for long periods of time. My approach to Donald Trump is to expose and counter his myths with old school, solid, shoe-leather reporting. 

Where are we with the narrative that the much-discussed "walls" are finally closing in on Donald Trump?

If Donald Trump is in fact convicted in the Manhattan criminal case as I expect will happen, we are going to see support for him drop in the polls. Much Trump polling support is soft. There are a lot of Americans who cannot stomach the notion of a convicted felon being president. But at this same time, it's become very clear—to the point that even Utah Senator Mitt Romney is saying this—that a large segment of the Republican Party doesn't believe in democracy, and they're perfectly happy to live under a dictatorship. Now, that tells me that these people do not know what a dictatorship means.

Let me be very clear here. If the United States becomes a dictatorship there will eventually be firing squads and other massive violence against "enemies" of the state. I know that I’m probably going to be one of the people in front of those firing squads because Trump has said he hates me more than any other journalist. Killing people is what dictators do. Dictator Trump and his successors would be no different. Donald Trump shared a video on his Truth Social site which stated that he was going to establish a "unified Reich." He's since taken that video down and is blaming it on a junior staffer. Trump always wants plausible deniability. But people shouldn't mistake what's going on here. I've been telling people for at least nine years that Trump intends to become America's first dictator. He doesn't know what's in the Constitution. He claims to have the power to do anything—including murdering people—as president. 

How are you assessing the mainstream news media's coverage of the hush-money trial?

I think there's been a great deal of variation in the quality of the coverage and commentary. It's mostly dependent on the quality of a given journalist's knowledge of the law. Most journalists are generalists; they don't know everything. When you see lawyers like Lisa Rubin and Andrew Weissmann, who are being paid by MSNBC, talk about what happened in the courtroom, you're getting a serious discussion. Yes, it may sometimes get more into the weeds than I think is necessary but, you are going to have a very serious discussion. Much of the general interest coverage is by reporters who do not understand the basics of how trials work. In my opinion, the cable stations have done pretty well. By comparison, the three network newscasts have depended entirely on the quality of the journalist covering the hush-money trial.

You have repeatedly said that Donald Trump is basically done for and will be convicted in this first criminal trial. I have had other experts, both on and off the record, counsel that the American people — and those of us publicly discussing and writing about Trump and these trials and the democracy crisis — should be much more cautious given the technical nature of the charges and how mercurial juries can be. Your intervention?

The elements of the hush-money case have all been established at trial. The prosecution has established the falsification of the records, the payment of the checks. They've introduced into evidence, tape recordings showing that Donald Trump knew exactly what was going on. Furthermore, Trump's mindset was not that he was protecting his wife Melania. Trump literally disavowed that as a defense by saying he didn't care, and he tried to delay paying Stormy Daniels roughly a week before the election. Trump's reasoning was that “I won't have to pay her because either I'll be president and I can take care of it or I won't be president and it won't matter.”

Also, this jury is unusual in a very important way. It is a highly educated jury that includes two lawyers. Of note, there are six alternates. Normally a criminal trial has two alternates. This tells us that Judge Juan Merchan was concerned that there'd be a ringer, a Trump MAGA supporter. If there is a single juror holding out who won't pay attention to the facts, the judge can replace that juror and order the new jury to start deliberations over. On the evidence, the best Donald Trump can hope for is a hung jury. But the judge has already taken care of this by having six alternates.

What is your assessment of Michael Cohen's "performance" during the trial?

I actually thought Michael Cohen did very well on the witness stand. He got some sharp points in on cross-examination because Trump's lawyers instead of sitting down asked all gratuitous additional questions at Trump's insistence. It is common for law enforcement to use criminals to go after other criminals, including people who are hitmen and major drug dealers. My experience as a journalist has been that some of the best sources I've had were people whose reputations were that they lie all the time. Michael Cohen was paid by Donald Trump to lie. But once it became in their interest to tell the truth, these types of crooks have been among the best sources of my entire career, because they had an interest in being truthful with me. Of course, Michael Cohen has nothing but bad things to say about Donald Trump given how the Justice Department under Trump’s administration went after him. Cohen is biased against Trump – and with good reason. But that does not matter. In the end, it is the truth of the matter, not Michael Cohen's attitude. That is what matters to the jury.

What do the reactions of the jury tell us about the hush-money case?

I haven't been in the jury room or the overflow room. So, my reporting here is second-hand. The reporters and journalists who are physically there have said that the jury has been quite attentive and that they've paid close attention to some of the key elements of proving the case. The prosecutors, for example, went through the details of each check. The jurors were paying close attention to those details.  Trump has repeatedly fallen asleep in the courtroom, rolled his eyes and made other facial expressions in disgust. That doesn't go over well with jurors. They feel disrespected as jurors.

Is this strategic? Trump just being his regular horrible self? Something else?

Trump is clearly showing his contempt for the jury. Juries pay attention to how you react, if you're sitting at the defense table. If someone says something important about a case they look to you, the defendant, to see how you react. Are you stone faced? Are you smiling? Are you cowering? Donald hurts himself here. It is important to understand that Donald Trump has no empathy for anyone. That includes his children. We are objects to Donald Trump, not people. That includes the people closest to him. This is a man who has lived a miserable life. Trump's bad behavior in court cost him real money in the second E. Jean Carroll defamation case. Likewise, Trump's bad behavior is going to cost him big in the hush-money trial too. The big question is, how long will the jury be out? Because there are two lawyers on this jury, they're not going to go out and come back in 20 minutes. But I'd be surprised if the jury is out more than one full day, or two at the most. If it goes on beyond that I would be surprised and that suggests something else is going on.

I am a lifelong comic book and graphic novel reader. What is in the thought bubble over Trump's head? You know him. What's going on in his mind? 

How can these insignificant nothings pass judgment on me, the greatest person who's ever lived, the world's leading expert on everything? How dare they!

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

Does Donald Trump really believe such things? 

Donald Trump knows that he is a fraud. He has persuaded himself to believe in the narrative about himself that he has created, however untrue it is. The problem with Donald Trump's personal narrative is that it is a reaction to the monster his father was, to the desperate emptiness inside that he tries to fill with claims that he has all this wealth that he doesn't actually have. Bullying other people is a big part of Trump that makes sense of his life too. Trump has threatened me many times. When Donald Trump is alone at night with his thoughts, he is deeply terrified. The hush-money trial is just the start. Trump knows that at the end of the road, he is going to end up in prison. 

What do you think will happen with the resolution of the hush-money case? 

Judge Merchan, having been so careful all the way through, will follow the normal procedure. He will not have Trump immediately taken into custody. He will order a probation report, which is the standard thing you do before sentencing. Judge Merchan will then set a date for sentencing. Because of the ten criminal contempt charges, Trump may get a harsher sentence than he would have gotten otherwise if he hadn't been so recalcitrant.

What do you think will happen when Donald Trump's fantasies meet the reality of a verdict in the hush-money trial? To reiterate, do you truly believe that Donald Trump ends up in prison? A former president?

Absolutely. But not necessarily for the hush-money case.

The criminal case where Trump will get a prison sentence is the Jan. 6 case. The precedent with the other convictions in the Jan. 6 case and the attack on the Capitol shows that Trump is going to get a prison sentence. As for the classified documents case, that is more uncertain. Who knows what's going to happen with Judge Aileen Cannon, who is clearly biased in favor of Trump. She may get removed at some point. If Trump is convicted and Cannon is not the judge, he will absolutely get a prison term in the classified documents case. There are people saying that the logistics of putting Donald Trump in prison are too difficult. That is not true. There are many ways to put Trump in prison. You can put him in a wing of a prison and close the rest of it. You can put Trump in a military stockade. There are many ways to do this. The Secret Service will be with Trump, and he will be in isolated confinement. In the end, Donald Trump will go to prison and there is a reasonable chance he will either die in prison or be released on a compassionate release basis as his life is coming to an end.

There is a great deal of concern from experts in domestic terrorism, civil wars, insurgencies, and other forms of political violence that if Donald Trump is found guilty there may be significant violence by his MAGA followers and other right-wing forces. Your thoughts?

I'm not worried about that. Because of the successful prosecutions in the January 6 cases, you're not seeing crowds turning up for Donald Trump, and screaming for murder, and other acts of violence. There aren't very many people who are willing to destroy their lives or go to prison for Donald Trump, in what's clearly will be a losing effort. Will there be some violence if Donald Trump is convicted and jailed? Yes, probably. And I feel very badly for what will likely be the members of law enforcement who will be murdered by Trump's followers. But, as a nation we do not back down in the face of speculative threats or even clear and direct threats. That's not what a free people do. That is what cowards do and people who do not believe in the principles of our Constitution. If we see some violence, I believe it will be a "lone wolf" or just a couple of people. There is not going to be an insurgency or civil war over Donald Trump or some effort to overthrow the government at Trump's command.