Fact-check: Trump misleads on jury selection, request to Judge Merchan for time off

Former President Donald Trump spread false and misleading statements about his Manhattan criminal trial as lawyers haggled over choosing jurors and the judge faced a new request to skip a day on Trump’s behalf. 

Trump is charged with 34 counts of falsifying business records in an alleged scheme to cover up a hush money payment to adult film actor Stormy Daniels before the 2016 presidential election.

Unusual scenes played out in and out of the courtroom during the first criminal trial of a former U.S. president.

Defense lawyers and prosecutors examined jurors’ social media posts and probed them about their feelings on Trump. Meanwhile, reporters described the Republican presidential nominee at times dozing off in court, which Trump’s campaign denied. After Trump appeared to mutter in the direction of a juror, Judge Juan Merchan told defense attorneys to speak to him: "I will not have any jurors intimidated in this courtroom," Merchan said.

Trump spoke to gathered reporters before and after each day of jury selection, making familiar and baseless accusations about what he called a "conflicted" judge and calling the trial a "political persecution." On his social media platform, Truth Social, he repeated his misleading characterization of the matter as a "Biden case." 

Here’s a look at some of Trump’s misleading statements about the trial.

Donald Trump discusses his request to have his trial delayed a day to attend his son's graduation in Florida. (AP, YouTube)

On the first day of jury selection, Trump asked Merchan not to hold trial on May 17 so he could attend his son Barron’s high school graduation. The school ceremony at Oxbridge Academy in Palm Beach, Florida, is scheduled for 10 a.m. that day and the trial is expected to last six to eight weeks.

Trump made some conflicting comments to reporters and on Truth Social about the judge’s response. Trump sometimes said the judge "likely" wouldn’t allow him to attend but at other times described it as a decision already announced: Merchan "is preventing me from proudly attending my son’s Graduation," he wrote April 15.

Merchan has ruled on neither Trump’s request, nor a separate request from a Trump lawyer whose own son is graduating June 3, The Associated Press reported.

Merchan seemed open to the idea of adjourning for one or both days.

"It really depends on how we’re doing on time and where we are in the trial," Merchan said, according to The Associated Press.

Criminal law experts cited legitimate reasons for Merchan to wait on that decision. Merchan will likely consider how a temporary adjournment would affect the trial’s participants, including the lawyers, witnesses and jurors.

Nancy S. Marder, a jury scholar and professor at Chicago-Kent College of Law, said the judge has scheduling discretion.

"The judge might consider where they are in the trial, what other breaks or days away from the trial have already been taken," Marder said. 

Sharon R. Fairley, a former federal prosecutor and current professor at the University of Chicago Law School, said it can be awkward to take whole days off during trial, potentially breaking up the "flow of the evidence." "For example," she said, "May 17 could fall right in the middle of the cross-examination of an important witness." 

Evan Gotlob, a white-collar criminal defense attorney and former prosecutor, said the trial may even be over before May 17. "Why make a decision you do not have to make?"

Protesters for and against Donald Trump demonstrate April 15, 2024, outside Manhattan criminal court in New York. (AP)

Trump continued to criticize Merchan’s gag order, which barred Trump from speaking about witnesses, court staff or their family members. The order said he is also not allowed to speak outside of court about counsel in the case, except for Alvin Bragg, the Manhattan district attorney. Trump is also free to criticize Merchan away from court, and has.

"This conflicted, Trump Hating Judge won’t let me respond to people that are on TV lying and spewing hate all day long," Trump said in an April 16 Truth Social post. "I want to speak, or at least be able to respond. Election Interference! RIGGED, UNCONSTITUTIONAL TRIAL! Take off the Gag Order!!!" 

Trump’s lawyers have challenged the gag order, and courts will have the final say. Legal experts said Trump should not be allowed to make comments that incite violence. 

Jon Sale, a Miami white-collar criminal defense attorney, said one potentially unfair aspect of the order is that although Michael Cohen, Trump’s former lawyer, has frequently talked about the case on television, Trump cannot rebut what Cohen says unless he does so in court. Cohen was convicted of multiple offenses.

However, experts told PolitiFact the law supports gag orders. 

"This case law goes back decades," said Stephen Gillers, a professor at New York University School of Law. "Merchan followed it."

In this courtroom sketch, former President Donald Trump smiles to the jury pool April 15, 2024, as he is introduced at the beginning of his trial in Manhattan state court. (AP)

Trump criticized how prospective jurors were removed — or struck — from the pool.

"I thought STRIKES were supposed to be ‘unlimited’ when we were picking our jury?" Trump wrote in an April 17 Truth Social post. "I was then told we only had 10."

There are two paths by which prosecution and defense may seek to remove or strike prospective jurors.

The first is "for cause," which means for a stated and qualified reason such as bias. The second is "peremptory," which means the prosecution or defense doesn’t need to give a reason, Marder said. The cause strikes are unlimited, but the peremptory strikes for each side are capped based on the level of felony charge in this case. In Trump’s trial, they’re set at 10 for each side for the regular jurors.

The prosecutor or defense can raise a challenge for cause, but that doesn't mean it will be granted, and the judge can raise a for cause challenge on his own, Marder said. The lawyers get to decide how to exercise their limited number of peremptory challenges. Jurors may not be challenged based on their race, religion, ethnicity, gender or sexual orientation.

Why limit peremptory challenges? It speeds up finding the final jury.

Lawyers, Gotlob said, "would just be kicking off people all day long, you would never have a jury." 

Trump’s defense challenged some jurors based on their social media posts. Merchan struck a prospective juror who cheered on social media after Trump lost a court challenge to his Muslim travel ban: "Get him out and lock him up," the person’s post had said. But Merchan declined to strike a prospective juror who wrote "Republicans projected to pick up 70 seats in prison." 

"She was pretty open and honest that she has disagreements with his political views," Merchan said after agreeing with the prosecution’s argument that the woman’s posts were satirical. "But the question is whether she can be fair and impartial."

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