History in the making with debut of Donald Trump: criminal defendant

He has been businessman, TV showman and president of the United States. On Monday morning, in the sobering surroundings of a New York courtroom, Donald Trump will play yet another role in American history when he becomes the first former White House occupant to stand criminal trial.

The case, involving hush money paid to the adult film star Stormy Daniels, carries profound political and legal ramifications as the Republican runs for election against Joe Biden in November. It is a jury trial not only of Trump but of America, testing the country’s checks and balances and sacred promise that no one – not even a president – is above the law.

Related: Trump’s New York criminal trial begins soon – but will the public care?

Trump will join the ranks of Silvio Berlusconi of Italy, Imran Khan of Pakistan, Nicolas Sarkozy of France, Luiz Inácio Lula da Silva of Brazil and Jacob Zuma of South Africa as a world leader turned criminal defendant. For the US, this is uncharted territory: even Richard Nixon, the only president to resign, was not put on trial over his role in the Watergate scandal.

“Donald Trump makes Richard Nixon and Watergate look like pikers,” Norm Eisen, a former White House ethics tsar, said at a briefing hosted by the Defend Democracy Project. “The historic nature of the first ever trial of a former president will only be matched by the outcome of the trial. The verdict is more likely than not to be one of guilt and the sentence more likely than not to be a sentence of imprisonment.”

Trump is accused of arranging a $130,000 payment made by his lawyer and fixer Michael Cohen to Daniels in the waning days of the 2016 presidential election campaign, buying her silence about an alleged sexual encounter at a hotel in 2006, and falsifying records to cover it up.

Denying any extramarital encounter with the adult film star, whose real name is Stephanie Clifford, Trump, 77, has said the payment was made to stop her “false and extortionist accusations”. He has pleaded not guilty to 34 counts of falsification of business records in the case brought by the Manhattan district attorney, Alvin Bragg.

At the New York county criminal court in Manhattan, Trump, once the most powerful man in the world, will cut a humbled figure as jury selection gets under way on Monday. “He can’t rise up and say, ‘I object! You’re a moron, judge!’” said Allan Lichtman, a history professor at American University in Washington. “He’s got to sit quietly and take it in – and that doesn’t sit well with Donald Trump.

“The truth is, all of these arguments that Trump has been making – it’s a witch-hunt, it’s the deep state, it’s the swamp, it’s the Biden crime family – count for zero when he gets into court. Trump can huff and he can puff but he can’t blow the courthouse down. He’s in real trouble.”

Although Trump is unlikely to testify at the trial, which will not be televised, past form suggests that outside the courtroom he will revel in the media spotlight and use it to rail against Bragg, spread conspiracy theories, paint himself as a victim and rally his supporters. Americans should expect a flurry of fundraising emails in their inboxes from Monday.

The trial will not necessarily deliver new revelations. The justice department previously investigated the hush money, and Cohen pleaded guilty in 2018 to federal campaign finance law violations, testifying that Trump orchestrated the payment to Daniels. Federal prosecutors opted not to charge Trump and ended their investigation in 2019.

Bragg has argued that the case is about Trump’s effort to corrupt the 2016 election through a “catch-and-kill” scheme to buy the silence of people with potentially damaging information about him. Some commentators have accused the district attorney of overreach, warning that he might inadvertently generate sympathy for Trump in the least serious of four criminal cases against him.

Lichtman disagrees. “The media coverage so far of this trial has been shameful,” he said. “It is incredibly important that we see now the first major party presidential candidate, much less the first ex-president, actually going on trial for serious felony charges that carry potentially criminal sentencing.

“Imagine if this was Barack Obama. Conservatives would be screaming ‘the trial of the century’, utterly disqualifying him from the human race, much less from being president. Moreover, it is irrelevant to the importance of this trial that there may be yet more serious charges levelled against him. If you are on trial for rape, that doesn’t mean it’s not significant just because you may later be on trial for serial murder.”

Indeed, for any other politician at any other moment in American history, Monday’s trial would be career-ending. But Trump – who once memorably boasted that he could shoot someone on New York’s Fifth Avenue and not lose any votes – has justified his “Teflon Don” reputation by surviving and thriving in one crisis after another.

Over the past year he has essentially merged his court appearances with his bid to regain the White House, turning his legal woes into a defining feature of a campaign of retribution. It has worked with his base. Donations to Trump surged following Bragg’s April 2023 indictment, and his opinion polling lead over rivals for the Republican presidential nomination widened, never to be lost.

Gwenda Blair, a Trump biographer, said: “No matter what happens he’ll be trying to raise money off of it. He will be insisting that he did nothing wrong and it’s a witch-hunt and all the rest. I don’t think what he’s going to do is going to be one bit different.

“He’s still a student of [famously bullying lawyer] Roy Cohn – deny, deny, deny, repeat, repeat, repeat, do it again, do it again, louder, louder, louder. Never ever back down. He’s not going to back down. Student of his dad. Don’t give an inch.”

But the sombre, cold clarity of Trump standing trial on charges that carry the possibility of jail time presents the biggest test yet. In a Reuters/Ipsos poll in February, about a quarter of self-identified Republicans and about half of independents said they would not vote for Trump if he is convicted of a felony crime by a jury. That could be significant in a tight race likely to be decided by narrow margins in a few swing states.

Kurt Bardella, a Democratic strategist, said: “There are no new votes in the ‘The system is rigged against me, they’re targeting political enemies,’ shtick that he does. There’s only the potential to alienate the middle-of-the-road swing independent voters that he’s going to need if he’s going to win in November.”

The timing is less than ideal. Trump has just upset Christian evangelical voters by indicating opposition to a national abortion ban. Now comes a trial full of salacious details. Bardella added: “The Christian voters he’s going to need are now also about to be fed a steady dose of, ‘I had an affair with a porn star while my wife was pregnant.’ I certainly don’t think this helps him with those values voters.”

Related: Trump’s hush-money trial date is set. Here’s what to expect

The spectacle of a former commander-in-chief appearing in the same Manhattan court where a group of Black and Latino teenagers known as the Central Park Five were wrongly convicted of raping a jogger, and where Mark Chapman pleaded guilty to murdering John Lennon, will be hailed by many as a symbol of equality before the law.

But it is the first of four potential criminal trials for Trump and may be the only one to take place before the election on 5 November. The former president also faces federal charges in Washington and state charges in Georgia over his efforts to overturn his 2020 loss to Biden, as well as federal charges in Florida of illegally retaining classified documents after leaving office in 2021. No trial dates have been set and, if Trump regains the presidency, he could quash the two federal prosecutions.

Larry Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota, said: “The fact that Trump’s being called forward in New York and his business has been called forward for indictments are clearly examples of a justice system that’s moving forward.

“On the other hand, I don’t think America can celebrate the fact that the most serious charges – involving his role in trying to undermine the 2020 election, and his illegal possession and lying about the top-secret documents that he held after leaving office – are not going to be aired out and settled in a courtroom before election day. That’s a potent message about the American justice system.”