MSNBC Legal Analysts Talk ‘Sleepy Don’ and Cameras in the Courtroom for Trump Trials
Donald Trump has dominated the American political landscape for the better part of a decade. Since losing the presidency to Joe Biden in November 2020, his legal skirmishes have been a significant thread in that narrative and news outlets — especially cable news — have fielded large teams of legal experts to distill, explain and guide viewers through the legal minutia, procedural arcana and ground-shaking results of the many trials of the 45th president.
“Because viewers are so oversaturated with Trump content right now, it’s really incumbent on the media to help them distill what aspects of this massive Trump smorgasbord is really important,” says Melissa Murray, a constitutional law professor at New York University.
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Murray is an MSNBC legal analyst and the coauthor, with former federal prosecutor Andrew Weissmann (who also appears on MSNBC), of “The Trump Indictments: The Historic Charging Documents with Commentary,” which offers an annotated rendering of four criminal indictments: the Jan. 6 election interference case and the classified documents case, both brought by Special Counsel Jack Smith; the election interference case in Georgia, and the current hush money case in New York.
Brought by the Manhattan District Attorney’s office, the New York trial is expected to last six weeks. It may be the only criminal trial to reach a conclusion before the presidential election. And, perhaps because of its seamy underpinnings, it has been a target of particular derision for Trump, who denies an intimate affair with Stormy Daniels, the pornographic film star who received $130,000 in hush money. The Trump campaign has used the trial to plead for donations from its army of loyal supporters. On the first day of the trial, the campaign raised $1.6 million in small-dollar donations, NBC News reported. (The campaign has raised that much online on only three other days in 2024, according to filings from the campaign’s online donation platform.)
Meanwhile, on Thursday, the Supreme Court heard oral arguments about whether Trump should be immune from prosecution for “official acts” while in office. The federal election interference case, which many legal scholars view as weak, hinges on the court’s decision.
Trump has used all of the trials to further his grievance narrative, asserting without evidence that the trials are designed to imperil his election bid. The legal experts disagree.
“When I worked in the Department of Justice,” says Joyce Vance, a former U.S. attorney and law professor at the University of Alabama, “it was an incredible honor to be a prosecutor and stand up in the courtroom and say, ‘May it please the court, I represent the people of the United States.’ That meant something to me every time I said it. My obligation was to be an advocate for the rule of law, not to pretend that everything is OK because it’s not. Our system, in some ways, can be very aspirational.”
Vance and Murray share analyst duties at MSNBC with Mary McCord, former assistant attorney general for national security at the U.S. Department of Justice; Lisa Rubin, a former litigator, and Katie Phang, a former trial attorney and the host of an eponymous show on MSNBC. McCord also cohosts the “Prosecuting Donald Trump” podcast with Weissmann, which has notched more than 14 million downloads. They are among more than a dozen legal experts at MSNBC. Between the five of them, they have appeared on the network more than 130 times to discuss the ongoing legal proceedings against the former president.
Here, they talk to WWD about the faltering reputation of the Supreme Court, cameras in the courtroom and how Trump’s courtroom behavior (sleeping, lashing out) could impact him in court and on the stump.
WWD: Opening statements basically set the strategy for any trial. What have we learned about the respective strategies in the New York trial involving a hush money payment?
Lisa Rubin: The government’s [opening statement] was really tight and scripted and methodical and chronological, which is what you would expect of a prosecutor’s opening. This is a story that many people think they know well. They think this is fundamentally about payments to Stormy Daniels by Michael Cohen. And yet, the prosecutor’s office was really clear that this is really about election fraud. They took us through that narrative, and maybe most importantly, they preempted the criticism of Michael Cohen. I’d compare Michael Cohen for them to a really old building that’s been substantially earthquake damaged, and therefore they wanted to introduce us to all the scaffolding that they’re building around him. So they were giving us sneak peeks of the emails and the texts and the phone logs and other documentation that they’re going to use to construct a story around him and why this is 34 felony counts about election interference, more so than an NDA regarding payments to an adult film star.
WWD: And Michael Cohen’s credibility is important because he was Donald Trump’s bag man for a long time.
Katie Phang: To your point, though, there was a total admission that Michael Cohen did this for his boss, and that narrative was the strongest message that was sent, even though [Trump’s lead counsel] Todd Blanche got up in openings and tried to make it seem like Michael Cohen is just a serial liar. We’re taking what occurred in this old courthouse in downtown Manhattan, and distilling it in a way that people will care for the right reasons.
WWD: With so many trials involving the former president, how do you craft what you’re saying to cut through the noise of what many people probably feel is too much legal minutia?
Mary McCord: I hope that what people feel is that they can get unbiased legal analysis and assessment of the facts. Regarding the opening statements, there are things that listeners will want to understand like, if the whole theory of the prosecution is there’s this conspiracy between Trump and [former National Enquirer owner] David Pecker and Michael Cohen, how come there’s no conspiracy charge?
WWD: Delay has been the name of the game for Trump’s legal team. Realistically how many trials are we going to be able to get to before November?
Joyce Vance: There are a lot of moving parts. It could just be this trial. There is some possibility that the Supreme Court could rule quickly on the [federal election interference] case and put that one back on track. Georgia is a little bit of a mystery, it seems to be moving slower. And of course, in the Mar-a-Lago [classified documents] case we are waiting for the judge to set a new trial date. This is testing Americans’ confidence in whether we’re still a rule of law country. Something that we want to do is to help people understand why we have confidence in the legal system. And I think we’ve now finally arrived at the moment where Americans can watch for themselves and make up their own minds based in part on this trial. It’s a system that has served us well and that is nimble enough to face and outrun challenges, even with a defendant who’s intent on delaying every case against him and trying to outrun the clock.
WWD: The Supreme Court’s Dobbs decision striking down the right to abortion and the personal conduct of some of the Supreme Court justices have dinged the court’s credibility with many Americans. How do you reconcile trust in the law with the current declining regard for SCOTUS?
Melissa Murray: I’m always trying to make connections between what we are seeing in the legal landscape and the court’s role in shaping the political landscape. Almost a year ago when [two Democratic representatives] were ousted from the Tennessee legislature, I was on [MSNBC host] Nicolle Wallace’s show and I said one of the things that was most important for viewers to understand was that these two Black men who were ousted from the Tennessee legislature, and their colleague Gloria Johnson, represented the three most populous cities in Tennessee. They actually are representing 40 percent of Tennesseans, but they were able to be voted out by their colleagues in the Tennessee State Legislature because the legislature has been gerrymandered beyond recognition so that a minority could actually have this impact on those who represent the majority. And that’s a result of the Supreme Court’s decision in 2019 in Common Cause v. Rucho.
WWD: A lot of the Trump cases began in eye-popping ways, like the early-morning FBI raid on Mar-a-Lago to recover the classified documents. And now these cases are moving at what feels like a plodding pace. Do you feel like, with November being a finish line of sorts, that you’re on mile 20 of the marathon?
M.Murray: It feels like for the last couple of weeks, we’ve all been drinking out of a fire hydrant. Certainly the federal cases stop if Donald Trump is elected, because all you need is a new DOJ with a new attorney general to kill these cases. A conviction in Manhattan will raise some important constitutional questions; we’ve never had a situation where an elected president is also a felon or has been convicted of a felony. If there’s incarceration attached to that penalty, there’s a question about whether that can happen, whether it’s deferred until after the conclusion of his presidential term.
J.V.: I feel like I’m on mile 35 of the marathon. It’s been a pretty hefty decade for the country. Mary and I worked together when we were at DOJ. I don’t think any of us envisioned ourselves ever explaining a situation like this to the American public. We are not even close to the end of the marathon, because really what we’re talking about is the future of American democracy. And I don’t mean to be an alarmist, but we’re living in a moment where we’re deciding does the rule of law matter? Are we still a country where no one is above the law? Can people have confidence in their institutions?
L.R.: I have a little bit of a different perspective on it, because professionally I was primarily a civil litigator. From a civil litigator’s perspective, the marathon is on one hand in mile 20 and on the other hand in mile 6. There is more than enough accountability in civil judgments, particularly when I think about the E. Jean Carroll [libel] trials that I covered. There are a constellation of civil cases having to do with Jan. 6 brought by members of Congress and police officers who are looking for civil relief vis-à-vis the injuries that they suffered that day. And those are still ongoing, and those won’t dissipate if Trump is reelected in November. The civil cases are a big part of this to the extent that we’re talking about a person who may never see any time in a jail, but nonetheless, could be very much impacted by the way in which this affects his wallet.
WWD: Donald Trump clearly feels no compunction about using social media to incite his followers to harass people, whether they’re witnesses, political rivals or jurors. We saw the consequences of this during jury selection for the New York trial where jurors had to appear in open court, state their names, and where they worked, among other details. One juror got cold feet and was excused. Serving on a jury is a civic requirement. And yet many prospective jurors have understandably sought and been granted excusals because of the toll being outed publicly could take on their lives and livelihoods.
M.McCord: Even before a Donald Trump trial, being a juror is a burden. I’ve sat on a murder trial before I became a prosecutor and it’s stressful, it disrupts your life. And that’s before you get someone who is going to be out there urging his followers to potentially commit acts of violence against you. It’s an extraordinary thing to ask of people. In this case, the judge should have had the responses to those questions taken at the bench, and I’m a big believer in the First Amendment and the right of journalists to report. As you indicated, one juror, and she was actually juror number two, her friends identified her based on the descriptions that had been reported in the news. She thought, well, if they can identify me, others can identify me, too. It’s not that hard to figure out who they are. I was a prosecutor for a long time and I was very rarely threatened. I’m threatened now much more than I was when I was a prosecutor. Mr. Trump just doesn’t play by the rules. To him, it’s just burn it all down.
M.Murray: I agree with everything Mary said. But it’s also worth noting that it’s been less than 50 years since women were absolutely required under the Constitution to be included in the jury pool, after the Supreme Court decided in Taylor v. Louisiana in 1975. Before that, it was customary to allow women to opt out of juries or to exclude them entirely because of their responsibilities to the family and to the home. This isn’t just a civic duty, it’s an essential attribute of equal citizenship. To have it compromised because the jurors are afraid of stochastic violence against them or the prospect of being doxxed is a real impairment to a system that is, whether you like it or not, a core attribute of what it means to be a citizen in this country. It wasn’t lost on me that the juror that Mary mentioned is a woman. Women feel a vulnerability moving around society because of the prospect of public violence, maybe more so than men. This does have the potential to really limit the willingness of women to do a public service that historically they were excluded from.
K.P.: With the Trump trials, intimidation and misogyny have become normalized. I’d add, to Lisa’s point about the civil cases, we’ve seen the accountability with E. Jean Carroll.
M.Murray: And [Carroll’s lawyer] Robbie Kaplan running circles around [Trump’s lawyers].
K.P.: Exactly, and [Kaplan’s cocounsel] Shawn Crowley. Female voices are saying we will not be cowed into submission. We will not be silenced in any way while Dobbs is destroying our rights to reproductive access. To Mary’s point, when we get abused on social media, the vitriol centers on gender. It’s being used to silence and it’s a Trump thing to silence critics. That’s why it’s important that we not normalize the abnormal and we say that the rule of law still has meaning and value.
WWD: One of the most inescapable headlines to come out of the current trial in New York has been Trump’s apparent habit of dozing off at the defense table, earning him the sobriquet “Sleepy Don,” the same insult he has leveled at Joe Biden. What effect, if any, does this have on the prospect of ultimate justice for Donald Trump?
L.R.: I think about it less in terms of the impact on him. I feel responsible, as eyes and ears for our network and our viewers, to try and capture those atmospheric details, not because I want to mock anyone or provide unnecessarily color or drama. I’m thinking about it not in terms of, wow, this is a person who is also going after their opponent for lacking in energy. I think about it in terms of, this is a person who’s being tried for the first time for criminal felony charges, why is it difficult for him to stay awake? Is he purposefully disassociating himself? Is he trying to maintain his calm at moments that are infuriating for him? Or is he really just tired? I wonder what impression that is making on the jurors? Do they think he’s bored? In the Carroll cases, there were moments at which he seemed very disrespectful and dismissive of the process. And that did not inure to his benefit at the second of the Carroll trials.
M.Murray: I don’t know if it has a huge impact politically since there aren’t cameras in the courtroom. The 12 jurors see it and the press sees it, but you don’t actually get the visual image of him falling asleep. That would be more meaningful. I don’t know that it’s going to hurt him. I actually have tremendous empathy for him because I sit in faculty meetings all the time. I think I’m a pretty on-the-ball person, but even I close my eyes to rest during these meetings. I’m getting faculty meeting energy from him.
WWD: What are your thoughts on cameras in the courtroom, because when people know they’re being filmed, they definitely behave differently.
M.Murray: I think about this a lot in the context of the Supreme Court, which very famously has avoided the question of cameras in the courtroom on the view that it would be deleterious to the court’s work. For many years, you could not find out about the court’s work in real time unless you attended oral argument. That changed after the pandemic when they began livestreaming oral argument. That was a huge development and one that has allowed for the public to be more engaged with the work of the court at a time when the court’s work has become more relevant to the public. Americans would actually be surprised at the dismissiveness with which certain arguments are treated by certain members of the court. The way Justice Alito looks when he’s talking about women’s reproductive rights; that would actually make really impactful how important the court is for questions of women’s equality. But I think for a case like Donald Trump’s, the concerns about the juror’s privacy and safety really are paramount here.
M.McCord: I very much agree with Melissa [about the Supreme Court]. There’s a huge difference, though, between cameras in an appellate courtroom. On the one hand trials are public. There’s a constitutional right to a public trial. And yet, obviously, even if we all wanted to go attend the trial of Donald Trump, we couldn’t fit in the courtroom. So only a few select people get to actually see what’s happening. It would be enormously beneficial for people to see how the process works. On the other hand, there’s no question when we’re talking about the trials of Donald Trump, that his lawyers have dual roles. They need to represent their client. But having read the accounts of the E. Jean Carroll cases, those lawyers felt that they also needed to market what they were saying to their client, Donald Trump, and to the public. I would be afraid live video of [the New York] trial would become one more stump speech aided and abetted by his lawyers.
K.P.: I’m an unconditional “yes” when it comes to cameras in the courtroom. Transparency is owed to the American public. We should trust them and their ability to be able to discern what part of it is theatrics and what part of it is legitimately judicial process at work. There are safeguards that could be implemented that would protect jurors. There was an interesting analysis that came from one of our MSNBC colleagues when we left court about how this case inures to Donald Trump’s benefit because people can’t see how tired he looks, how he’s slumping in his chair, and perhaps sleeping, maybe meditative, we don’t know. It shows, in my opinion, a lack of respect to the jurors that have been suffering through this process to be able to do their civic duty to have the person who is on trial acting dismissive, as if this really is just a bothersome event in his life. Sunshine is always the best disinfectant. I believe in access so that the American public can have a better understanding of how the sausage is made.
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