From President to Convict
From President to Convict
The books are now legion that expose Donald Trump as a litigious grifter, a foe of democracy, and a figure without moral brakes. Notable in the canon are Maggie Haberman’s Confidence Man, Peter Baker and Susan Glasser’s The Divider, Mary Trump’s Too Much and Never Enough, Rick Reilly’s Commander in Cheat, and my own Plaintiff in Chief.
As a lawyer and former federal prosecutor, I found Jonathan Alter’s important new book, American Reckoning, to shed new light on the beast within us. The acclaimed journalist, historian, and filmmaker focuses on Trump’s criminal trial in Manhattan, over the fraudulent cover-up of a $130,000 payoff to the porn star Stormy Daniels before the 2016 election. At the same time, Alter offers a deeply personal account of his 40-plus years as a political writer, at the Washington Monthly, Newsweek, NBC News, The New York Times, and other outlets. The book delivers page after page of historical fact, brilliant narrative, and penetrating observation, chronicling what will likely be titled the “trial of the 21st century.”
Alter covered the trial for New York Times Opinion, the Monthly, and his Substack newsletter, Old Goats. The O. J. Simpson trial in the 1990s, which Alter also covered, was said to be the “trial of the century,” but, as he points out, “murder trials, no matter how juicy or socially resonant, are not as significant as a trial like this, which is about accountability for the most famous man in the world—a demagogue bent on destroying democracy.”
Chicago born and bred, Alter comes from a line of patriots. His father, James, was a bombardier who flew 31 dangerous missions in World War II behind enemy lines. Jonathan writes,
When he got home to Chicago in 1945, Dad learned from my great-grandmother that he had bombed the town in Hungary where she said “our people” were from, though by that time almost any Jewish relatives in the area who hadn’t emigrated to America had been carted away to the camps. Dad had no regrets. He was part of what Tom Brokaw dubbed “the Greatest Generation.” The men and women who survived the Great Depression and World War II and built a powerful postwar economy shared a set of beliefs: appeasing enemies never works; alliances matter; and America is great, as Alexis de Tocqueville said, because America is good.
Jonathan’s mother, Joanne, was a feminist influenced by Eleanor Roosevelt, ran for public office in Chicago, and was a pioneer for women in politics. She became a commissioner of the Metropolitan Sanitary District, having run on an environmental platform.
The Alters’ political values were North Shore liberal. They campaigned for
Adlai
Stevenson, and their commitment to the American political system made
an indelible impression on their son. The Andover- and Harvard-educated
writer became a superstar media and political writer and columnist at Newsweek
during the 1980s, ’90s, and aughts as Trump cut one of the most outsize
figures in Gotham. It was perhaps inevitable that Alter, in his 60s,
would fasten onto Trump’s political ascent.
I came upon Trump’s four criminal indictments from a different angle. There has never been anything like his legal jeopardy in the 237 years since the Framing of the Constitution. Think of it: A former president charged with multiple felonies, impeached twice, with no respect for the Constitution, the rule of law, or our primary institutions, psychologically incapable of distinguishing between public and private interest. His take-no-prisoners pursuit of power is unbridled, not to serve the American people but to serve himself.
Trump has no guardrails. He has claimed he could murder someone on Fifth Avenue and not lose any votes. He likens himself to Jesus Christ. He has no respect for our military. He avoided military service with a spurious claim of podiatric bone spurs, and later sniggered that those who had died in combat were “suckers and losers.”
He claims to love America, but he disdains Americans—minorities, recent immigrants, the disabled, the undeserving, and the poor. His America is about carnage, decline, and nostalgia instead of constant renewal.
I have always loved a good criminal trial, for trials are the drama of the law. In college, I used to go to the federal court in Manhattan to watch some of the great cases before great judges unfold like a stage play, replete with tears, laughter, tension, and resolution.
When I became a prosecutor in the Southern District of New York, I prepared for the awesome task before me by reading transcripts of famous jury trials: the Alger Hiss case, the Julius and Ethel Rosenberg case, and the trial of Bruno Hauptmann in the Lindbergh baby kidnapping.
I saw the craft of jury selection, opening statements, direct and cross-examinations, summations, and judges’ charges to juries. Then came the verdict. Verdict is a word from the Latin, meaning to speak the truth. The jury, in rendering its verdict, tells it like it is: Did it happen? Did the defendant really do it?
The dean of American trial judges, Edward Weinfeld, famously said, “Each case is important, whether or not it will make new law, because the outcome can bring either triumph or disaster to the litigants and their families.”
Weinfeld notwithstanding, I found that few trials are as dramatic and meaningful as in high-profile cases, in which the defendant is usually famous, notorious, or influential. In Greek tragedy, the fall from grace is always the most absorbing moment of the drama.
In all the high-profile American trials I saw, read about, heard of, or tried myself, no one even hinted that the defendant was above the law. Not O. J. Simpson. Not Edward Kennedy Smith. Not Al Capone or Vito Genovese or Carlo Gambino. Not even Roy Cohn. Not one. Never. Ever. That is, until Donald Trump’s lawyer said in open court that Trump would even have criminal immunity if he ordered the Navy’s SEAL Team 6 to assassinate a political opponent. Thanks to an extremist Supreme Court all but willing to declare the president, in office and afterward, a law unto himself, Trump is on the verge of getting away with it.
The 45th president convinced six justices that former presidents are immune from criminal prosecution for crimes in office. He appointed three of them. Two others he didn’t nominate, Clarence Thomas and Samuel Alito, should have recused themselves as their politically committed bias shrieks from their nonjudicial conduct.
The Founding Fathers could have given the president immunity had they wanted to. Several colonial states conferred immunity from criminal prosecution on their governors. The Founders debated the point into the ground. They concluded that they did not want another George III. The president was not a king who could do no wrong; he was the law’s servant, not its master. If he did wrong, he would be accountable to the people. But, as Justice Thomas sees the world, “there has been much discussion about ensuring that a President ‘is not above the law.’ But, as the Court explains, ‘the President’s immunity from prosecution for his official acts is the law.’ ”
The Founding Fathers could have given the president immunity had they wanted to. Several colonial states conferred immunity from criminal prosecution on their governors. They debated the point and concluded that they did not want another George III. The president was not a king who could do no wrong. He was the law’s servant, not its master.
Alter is intrigued by the legal system but enthralled by the American presidency. He knows whereof he speaks. He interviewed nine of the last 10 American presidents (all but Ronald Reagan)—before, during, or after their presidencies—and wrote books about three. He has covered 11 presidential campaigns.
He searched for precedents when a president or former president faced a criminal trial. There are none. In 1807, Vice President Aaron Burr was tried and acquitted of treason, and in 1973, another vice president, Spiro Agnew, took a plea deal for accepting bags of cash in the White House. But they were vice presidents, and as John Nance Garner, who served as vice president under Franklin D. Roosevelt, trenchantly remarked, the vice presidency was not worth a bucket of warm spit.
Before recent events, no judge, legal scholar, or legislator thought that the president was above the law. In 1872, President Ulysses S. Grant was ticketed for driving his horse and buggy too fast on 13th Street in Washington. In 1953, Harry S. Truman, after he left office, was stopped for driving his car too slowly on the Pennsylvania Turnpike. In 1974, President Gerald Ford pardoned Richard Nixon before trial—an act that implied Nixon was not immune from criminal prosecution. In 2001, Bill Clinton agreed to give up his Arkansas law license and pay a fine in exchange for prosecutors dropping perjury charges involving a sexual relationship.
Alter reveres the American presidency and admires many of its recent officeholders, save Donald Trump. He recounts that his Montclair, New Jersey, home, built during the administration of Rutherford B. Hayes, is festooned with a portrait of Hayes, along with busts, pictures, and memorabilia of almost all of the other men who have held the highest office.
Alter recounts that he and his wife, Emily Lazar,
have got silver spoons of presidents, supermarket figurines of presidents, bobbleheads of presidents, paintings of presidents (including one by our daughter Charlotte of Martin Van Buren), bookends of presidents, and Pez dispensers of presidents. Did I mention the busts? We have bronzes of Washington, Lincoln, FDR, and JFK, and a wax Nixon, plus a foot-high peanut with Jimmy Carter’s grin and a classic print of Obama by Shepard Fairey. There is one president whose likeness does not appear anywhere in our home. I think you can guess who he is.
Alter’s respect for the office does not mean that he has deferred to power. He has not flinched from covering the sex lives of political figures; Gary Hart, John Edwards, and Bill Clinton did not escape scrutiny. He gives a shout-out to his mentor, the legendary journalist Charlie Peters, founder and editor of this magazine, who wrote that the sex lives of presidents and presidential candidates (though not senators or governors) were newsworthy because we “should not have to wonder from whose bed the commander-in-chief will be summoned at the moment of nuclear decision.”
The book exquisitely examines Stormy Daniels’s testimony about her tryst with the former president in a Lake Tahoe hotel. Alter justifies the lubricious detail, “not because it’s so germane to the case but because it’s more evidence of what a louche loser the forty-fifth president has always been.”
Alter writes, “So aside from the legalities, is it necessary for the public to know that Trump had sex with a porn star when his wife was pregnant? I vote aye—and still believe that when vetting presidential candidates, everything is fair game.
Accordingly, the book exquisitely examines Stormy Daniels’s testimony
about her tryst with the former president in a Lake Tahoe hotel. Alter
justifies the lubricious detail, “not because it’s so germane to the
case but because it’s more evidence of what a louche loser the
forty-fifth president has
always been.”
Against this backdrop, Alter gives his take on the historic hush money trial. Never before has a former president been tried and convicted of felonies in an American courtroom. A jury of Trump’s peers found a way to hold him accountable, in a way the Supreme Court couldn’t.
Alter also writes of his shift from personal reckoning to the search for Trump’s accountability:
My own reckoning—with my image of America and its commitment to democracy—is still underway. I have lost my claim to be, as John F. Kennedy described himself, “an idealist without illusions.” I’m still idealistic but it turns out I had more illusions about this country than I thought I did.
My aim, instead, is to show how a tawdry trial about hush money payments to a porn star became an inspiring if provisional locus of democratic accountability—a place where, for the first time since his father died twenty-five years ago, Donald Trump was forced to sit down, shut up, and face the consequences of his actions.
As we know, four criminal cases have been brought against Trump, two federal and two state. Three of these cases—including the most important, Trump’s conspiracy to overthrow the 2020 election and remain in power—have gone nowhere. As Alter writes, it’s clear that the Supreme Court is on Team Trump. There won’t be time for a coup trial before the election, and if Trump wins the presidency, he will kill the case. Six justices are apparently fine with that.
The case in Fulton County, Georgia, is a headless horseman mired in appellate litigation over whether the prosecutor, Fani Willis, should be disqualified because of an unfortunate sexual dalliance with her chief assistant. While the Georgia “Find me 11,780 votes” case is in limbo, the Mar-a-Lago documents case is in tatters, dismissed by the Trumpy trial judge who doesn’t think Special Counsel Jack Smith was appropriately appointed despite countless other appointments of special counsels being upheld. The matter is on appeal, and on the Supreme Court, Thomas has already indicated that he doesn’t think Smith had constitutional authority. Elie Mystal, writing in The Nation, despaired that “[Judge Aileen] Cannon’s decision to toss the case should dispel any remaining hope that the courts will save us from Donald Trump.” Does Alter remain hopeful? Having read the book, I am not so sure.
So, in the search for presidential accountability, we are left with the subject at hand, the “zombie” Stormy Daniels case, which Alter calls “the runt of the litter,” pressed by the intrepid prosecutor Alvin Bragg and tried in April and May of this year despite Trump’s pleas that it occur after the election. Once sentencing is imposed after the election, endless appeals will follow on the way to the Supreme Court, and indeed, the justices may get to render the final judgment.
The Manhattan case should raise no issue of presidential immunity since the fraudulent conduct all occurred in the run-up to the 2016 election before Trump was president. However, certain related pieces of evidence arose in the White House after Trump became president. In his immunity decision, Chief Justice Roberts made clear in a footnote that he was hamstringing presidential prosecutors, stressing that evidence of official acts would be inadmissible even if the trial concerned private acts to which there would be no immunity.
What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “‘seriously cripple’” the President’s exercise of his official duties … And such second-guessing would “threaten the independence or effectiveness of the Executive.”
Alter gives us all the color of the Manhattan case, which, as it happens, was not televised (Alter agrees with this decision) and was not made available as a real-time audio transcript. Only Trump’s impromptu press conferences when the court was in recess presented his side of the story. In the courtroom, he exercised his right not to take the stand. His defense reverberated the sounds of silence.
We also get Alter’s impression of Judge Juan Merchan, whose lefty daughter Trump savaged. Alter describes Merchan’s “soft, soothing voice” with “just a touch of Queens and some wisdom in it.” Trump described the jurist as a “Trump hater” for donating $35 to Biden and the Democrats in 2020. But, Alter recounts, it was clear from the first day that Merchan was a no-nonsense judge who was “not going to take any shit from Donald Trump.”
The O. J. Simpson trial in
the 1990s, which Alter also covered, was said to be the “trial of the century,” but “murder trials, no matter how juicy or socially resonant, are not as significant as a trial like this, which is about accountability for the most famous man in the world—a demagogue bent on destroying democracy.”
Then, there is the star witness Michael Cohen, Trump’s fixer and enforcer. Alter describes Cohen as “a cross between a Damon Runyon character and Sammy ‘the Bull’ Gravano, the squat mobster who brought down John Gotti.”
The critical question for the jury was whether Cohen was telling the truth about the cover-up of the payoff to Daniels. Alter’s impression as he raised his right hand and pledged to tell “the truth” was that “he seemed to me to mean it.” More importantly, the jury believed Cohen.
According to an observation often attributed to Lenin, “There are decades where nothing happens, and there are weeks where decades happen.” So let it be with our times. Trump slept through parts of his trial, and he woke up a convicted felon. Will the conviction stick? It’s early days.
Alter’s fine, indispensable book is a significant contribution to the public record of the trial—an understanding of the presidency worthy of Robert Caro and a legal account of a celebrity trial that would have enthralled Dominick Dunne. It is a must-read not only for lawyers but for all interested citizens.
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