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      In Trump Prosecution, Special Counsel Seeks to Avoid Distracting Fights

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      Jack Smith has taken an iron-fist-in-a-kid-glove approach, sidestepping secondary issues that could divert attention from the weight of the evidence he has assembled in his case against the former president.Jonathan Goodman, the magistrate judge assigned to handle Donald J. Trump’s arraignment, did something of a double take during the proceeding on Tuesday, when the Justice Department offered the former president a bond deal that was not merely lenient but imposed virtually no restrictions on him at all.Jack Smith, the special counsel overseeing the prosecution for the department, opted not to request conditions routinely imposed on other defendants seeking to be released from custody, like cash bail, limits on domestic travel or turning in his passport.But Judge Goodman, tasked with hashing out a bond agreement during a one-day cameo appearance on the case, was not entirely on board. He suggested that Mr. Trump be compelled to “avoid all contact with co-defendants, victims and witnesses except through counsel.” Mr. Smith’s deputy, David Harbach, joined Mr. Trump’s lawyers in opposing that idea — but the judge imposed a version of it anyway.The first courtroom skirmish in United States v. Donald J. Trump underscored the legal perils the former president faces and his determination to make the indictment a centerpiece of a 2024 presidential campaign fueled by grievance and retribution.It also provided telling insights into the fist-inside-a-kid-glove approach that Mr. Smith and his team employed: an aggressive fast-track approach to prosecution coupled with a conspicuously respectful posture toward the defendant.Mr. Smith’s decision not to demand any conditions at the arraignment, people familiar with the situation said, reflected a belief that prosecutors should avoid impairing Mr. Trump’s ability to campaign. He is also seeking to dodge potentially distracting elements to a case focused on concrete evidence about the former president’s handling of classified documents and efforts to obstruct government efforts to reclaim them.His approach also seems to be a nod to the political sensitivities created by years of Republican protests — and misinformation — about prior investigations into Mr. Trump by the Justice Department and the F.B.I.“The prosecution of a former president and the current political rival of President Biden is obviously hugely politically fraught and comes against the background of prior Justice Department actions against Trump marked by error and excess,” said Jack Goldsmith, a Harvard Law professor and former assistant attorney general.“Trump and his allies will do everything they can to demonize the prosecution as unfair,” he added. “It makes perfect sense that Smith, who has the law clearly on his side, would do everything he can to avoid raising the temperature on the matter further.”There are other indications that Mr. Smith, who sat a few feet behind Mr. Harbach in the courtroom on Tuesday, intently following the back-and-forth with the judge, seems intent on avoiding unnecessary confrontation.Conspicuously absent from the indictment was a potential charge that had been listed in the affidavit the Justice Department filed to obtain a search warrant for Mar-a-Lago last summer: Section 2071 of the federal criminal code, which prohibits the concealment and mishandling of sensitive government documents.It was the only crime on the sheet that might have directly affected Mr. Trump’s 2024 presidential bid, requiring that anyone convicted of it “shall forfeit his office and be disqualified from holding any office under the United States.”Jack Smith, the special counsel, opted not to request conditions routinely imposed on other defendants seeking to be released from custody.Kenny Holston/The New York TimesMany legal scholars believe that the provision is unconstitutional and would have ultimately been struck down if it were imposed on Mr. Trump. But Mr. Smith’s team sidestepped the issue altogether, leaving it out of their 37-count indictment on a section of the Espionage Act that imposes a prison term but no restrictions on holding office.“I think it’s a very savvy move not bringing that charge,” said John P. Fishwick Jr., who was the U.S. attorney for the Western District of Virginia from 2015 to 2017. “It makes this much less about politics — this is about the evidence, not about blocking him from office.”The special counsel has already gone where no prosecutor has before, indicting a former president on charges that he illegally retained national security documents and schemed with his personal aide to obstruct investigators. And he has not been shy about ensuring that some of the most vivid evidence (including photographs of boxes stacked in a bathroom at Mar-a-Lago and of top-secret documents spilled onto the floor of a storage room) be made public.But Mr. Smith’s team has also taken pains to spare the former president unnecessary embarrassment or inconvenience, as evidenced by their deferential attitude at the arraignment toward Mr. Trump and his co-defendant, Walt Nauta.The U.S. Marshals Service, a branch of the Justice Department responsible for law enforcement at federal courts, adopted a similar tack. They booked Mr. Trump quickly and quietly in an office in the courthouse, registering his fingerprints electronically but eschewing a mug shot “because there are plenty of pictures of him” to choose from, according to a federal law enforcement official who briefed reporters afterward.Mr. Smith’s decision to avoid the placement of strict preconditions on Mr. Trump’s release appears to be part of a larger strategy of avoiding secondary fights that could complicate efforts to obtain a conviction, according to current and former Justice Department officials.By not pressing to limit contact between Mr. Trump and potential witnesses who are also his aides and other employees or advisers and lawyers, the prosecutors were seeking to minimize the potential for any violations of those strictures that might disrupt their efforts to keep the trial focused on the core charges involving national security secrets and obstruction.“I imagine this is why they did not insist on travel restrictions or even a gag order,” said Barbara L. McQuade, who was the U.S. attorney for the Eastern District of Michigan from 2010 to 2017.There is also a sense among some close to the case that much of the evidence needed to convict the defendants — in the form of text messages, photographs, camera footage, sworn testimony and the detailed notes of M. Evan Corcoran, a Trump lawyer — is already in place, making a confrontation over witnesses a costly distraction with limited benefits.“No-contact orders, like the one the judge insisted on, are routine — even in cases where you don’t have a defendant, like Trump, who has tried to influence witnesses,” said Mary McCord, a former top official in the Justice Department’s national security division. “But in this case, Jack Smith has a lot of what he needs already, so he seems to be avoiding a fight that could slow the whole the process down.”Mr. Trump’s lawyer Todd Blanche had a different reason for objecting to the tougher terms: It was “unworkable” for the court to place preconditions on his client’s casual interactions with potential witnesses on his payroll or in his Secret Service protective detail, he told the court.But some critics, including Andrew Weissmann, who was the lead prosecutor in Robert S. Mueller III’s investigation of the Trump campaign’s connections to Russia, see all this as a double standard that unfairly shields Mr. Trump from the conditions placed on others accused of serious offenses.Judge Goodman — a former newspaper reporter with a wry, conversational courtroom style — did not object to the department’s desire to limit the restrictions on Mr. Trump, other than he appear for his court hearings and commit no crimes. But he seemed puzzled why Mr. Smith’s team would not, as a bare minimum, insist that a defendant who has been accused repeatedly of pressuring witnesses be given no constraints at all.“Despite the parties’ recommendations to me, I am also going to be imposing some additional special conditions,” the judge said. “Former President Trump will avoid all contact with witnesses and victims except through counsel” — once prosecutors assembled a list of witnesses.Mr. Harbach said his team would comply, then joked that the “elephant in the room” was that no such list existed yet. More

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      The Trump Case and the Bathroom Files

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      More from our inbox:Affirmative Action in College Admissions: Race or Class?The Slow Runner via Department of JusticeTo the Editor:Re “U.S. Justice System Put on Trial as Trump Denounces the Rule of Law” (news analysis, front page, June 11):Contrary to this analysis of the documents case against former President Donald Trump, what is being tested is not the credibility of the justice system. Mr. Trump’s completely predictable efforts to undermine confidence in the legal process are pure bluster.What is actually at stake is the credibility of the political system. At any other time in United States history, a candidate for president charged with serious federal crimes that led to profound questions about his judgment and commitment to protecting the nation’s secrets would be decisively rejected by the voters.Instead, early indications are that Mr. Trump’s base remains staunchly loyal to him. American democracy is imperiled if a significant segment of the voting public cannot see through dangerous, self-serving posturing.In Abraham Lincoln’s first great speech, the Lyceum Address in 1838, he predicted that an aspiring tyrant would someday seek power, and he warned, “It will require the people to be united with each other, attached to the government and laws, and generally intelligent, to successfully frustrate his designs.”Nearly 190 years later, Lincoln’s wisdom is truer than ever.Steven S. BerizziNorwalk, Conn.To the Editor:Re “Trump Put U.S. at Risk, Indictment Says” (front page, June 10):As the mother of a U.S. Marine reservist, I am sickened beyond belief to read that U.S. government top-secret information was stored in a bathroom at Mar-a-Lago.Our son and tens of thousands of other servicemen and women put their lives on the line in service and sacrifice to this country. To think that a man who was elected president could be so malevolent as to break the law for his own selfish reasons is incomprehensible.Kathryn KleekampSandwich, Mass.To the Editor:It is at once not surprising and mind-boggling to read the indictment of Donald Trump for his mishandling of classified documents (“The Trump Classified Document Indictment, Annotated,” June 10).It is not surprising because his alleged misconduct is consistent with his arrogant quip years ago that he could shoot someone on Fifth Avenue and not lose any voters. And it is mind-boggling because so many Republicans — no doubt celebrating in private — continue to publicly support Mr. Trump in order to not alienate his base.There are certain moments that are, or should be, above politics. This is one of them. This is a time for somber reflection and a commitment to, and respect for, the rule of law.Larry S. SandbergNew YorkTo the Editor:Re “The Greater Trump’s Opposition, the Greater His Support as a Martyr,” by Damon Linker (Opinion guest essay, June 10):I consider myself a liberal, but I am not feeling “giddy,” as Mr. Linker puts it, over the former president’s indictment. I am not gloating or smacking my lips but feeling sad, because the Republican Party has let it come to this low point.I’m sad because Republicans have let themselves be guided by political polls rather than common sense and a regard for ethics and patriotism. They have followed Donald Trump down this dismal road, which has sullied the office of the presidency, and there seems to be no end in sight.Chase WebbPortland, Ore.To the Editor:Re “Trump Appointee Was Randomly Assigned to Case, Clerk Says” (news article, June 11):The supposedly random assignment of Judge Aileen Cannon to the Trump criminal case will be another test of the frequent pronouncements by members of the federal judiciary, including several Supreme Court justices, that politics never crosses the courtroom threshold.Will Judge Cannon have learned nothing from the surprisingly strident appeals court slap-down of her troubling and seemingly politically based previous rulings, or will she proceed as the fair and impartial judge she swore to be?It is not only the public’s perception of the judiciary but also the future direction of the country that may hang in the balance.Stephen F. GladstoneShaker Heights, OhioThe writer is a lawyer.Affirmative Action in College Admissions: Race or Class? Getty ImagesTo the Editor:Re “I’m in High School. I Hope Affirmative Action Is Rejected and Replaced With Something Stronger,” by Sophia Lam (Opinion guest essay, nytimes.com, June 5):The facts are clear: The vast majority of Asian Americans support affirmative action. Amplifying the voices of the Asian American minority that oppose affirmative action without this essential context privileges their position at the expense of the 69 percent of Asian Americans who believe that affirmative action offers communities of color better access to higher education.Regardless of the Supreme Court’s ruling, we will continue to stand in solidarity with communities of color and fight for policies that increase equal access to educational opportunities for all, particularly the underrepresented children of our multiracial society.Michelle BoykinsNiyati ShahWashingtonMs. Boykins is the senior director of strategic communications at Asian Americans Advancing Justice-AAJC. Ms. Shah is its director of litigation.To the Editor:Sophia Lam is entirely right. What is most puzzling about college admissions is that no colleges, including the most prestigious, are focused on diversity in such a socioeconomic-based way. “Underprivileged” includes many immigrants, people of color and all Americans from working-class backgrounds.If a socioeconomic standard were applied, clearly African Americans and other students of color would benefit, but it would not be solely for their skin color.Soft or hard quotas make Americans (and the Supreme Court for more than 40 years) uncomfortable. Why doesn’t Harvard, Princeton or Yale take this common-sense step?Howard FishmanHaddon Township, N.J.The Slow Runner Desiree Rios for The New York TimesTo the Editor:Re “For This Runner, There Is No Shame in Bringing Up the Rear” (front page, June 3):I enjoyed reading about Martinus Evans, the founder of Slow AF Run Club. I am now 71 and have been running since 1980 and used to be near the front in races. But now I’ve slowed to be near the back of the pack.I too have been taunted by people in the crowds during the New York City Marathon about going too slow. His encouragement to all runners is excellent.I too tell every slow runner in my club (New Hyde Park/Mineola Runners) to just get out there. I will stay with any runner, even if they have to walk. I’ve competed in marathons, half-marathons and triathlons and believe that no runner is too slow.Some people in clubs have become elitist and don’t want to be bothered with slower runners. Shame on them. Once they were very slow too. How soon they forget.This article is very important to show that there is support for all types and shapes of runners. Running is life-changing and lifesaving.Jeffrey SalgoQueens More

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      The Supreme Court Has Earned a Little Contempt

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      Although the Supreme Court has been deciding cases at a glacial pace this term — and that with an almost comically small docket of only 59 merits cases — the justices have found other ways to keep busy. They have been spinning their ethical lapses (Justice Clarence Thomas), blowing off congressional oversight (Chief Justice John Roberts), giving interviews whining about public criticism (Justice Samuel Alito) and presenting awards to one another (Justice Elena Kagan to Mr. Roberts).In the cases it has decided, the Supreme Court has gutted an important provision of the Clean Water Act and made it easier for private litigants to mount constitutional challenges to an administrative agency’s structure or existence. Opinions still to come threaten to strike down everything from affirmative action in education to student debt relief to the Indian Child Welfare Act.Court observers might be tempted to describe all this as a relatively recent development, a function of the court’s 6-to-3 Republican-appointed supermajority. The University of Michigan law professor Leah Litman has called this the “YOLO court” (for “you only live once”), because of the majority’s apparent sense of liberation in pursuing long-held conservative goals. Mark Lemley of Stanford placed the beginning of the “imperial Supreme Court” in 2020.Mr. Lemley is right to decry the self-aggrandizing nature of the court. But his dating is somewhat off. Judicial self-aggrandizement has been in the works for a lot longer: It has been a hallmark of the John Roberts years.Over roughly the past 15 years, the justices have seized for themselves more and more of the national governing agenda, overriding other decision makers with startling frequency. And they have done so in language that drips with contempt for other governing institutions and in a way that elevates the judicial role above all others.The result has been a judicial power grab.Judges have long portrayed themselves as neutral, apolitical conduits of the law, in contrast to the sordid political branches. This portrayal serves to obscure the institution of the judiciary and to foreground the abstract, disembodied concept of the law. In turn, it serves to empower judges, who present themselves not as one type of political actor but rather as the voice of the majestic principles of the law.But Mr. Roberts’s judiciary has increasingly taken subtext and made it text. Here are three thematic examples out of many.Campaign Finance LawStarting with Citizens United in 2010, the Republican-appointed majority on the court has consistently struck down provisions limiting the influence of money in politics, including provisions that it previously upheld. In a 2014 case, Mr. Roberts wrote that campaign finance regulations that pursue objectives other than eradicating quid pro quo corruption or its appearance “impermissibly inject the government into the debate over who should govern. And those who govern should be the last people to help decide who should govern.”In this brief passage, Mr. Roberts implicitly distances his own institution from “the government” of which it is obviously a part, implies that the court stands outside the processes of governance, and suggests that there is something self-dealing and borderline corrupt about campaign finance laws passed by elected legislatures.In these same cases, the justices have described nonjudicial political speech in terms that make it sound kind of … icky. It involves “sound bites, talking points and scripted messages that dominate the 24-hour news cycle,” in Justice Anthony Kennedy’s words. This sort of speech deserves protection for the same reasons that “flag burning, funeral protests and Nazi parades” do, in Mr. Roberts’s.Yet there has been one glaring exception to the majority’s hostility to campaign finance regulations: In the context of state judicial elections, they have upheld restrictions that they would be highly unlikely to tolerate in the context of nonjudicial elections. Tellingly, these cases describe judges in a manner that starkly contrasts with how they have described nonjudicial officeholders.As Mr. Kennedy put it in a 2009 case about when campaign spending required a state judge to recuse himself, “Precedent and stare decisis and the text and purpose of the law and the Constitution, logic and scholarship and experience and common sense, and fairness and disinterest and neutrality are among the factors at work” when judges consider cases — a far cry from the “sound bites, talking points and scripted messages” of nonjudicial political speech.And in a 2015 case upholding a Florida law that forbade candidates for judicial office from personally soliciting campaign contributions, Mr. Roberts, anachronistically appealing to the authority of Magna Carta, wrote that judges “cannot supplicate campaign donors without diminishing public confidence in judicial integrity” and concluded that “judges are not politicians, even when they come to the bench by way of the ballot.”Mr. Roberts’s protestations to the contrary notwithstanding, judges are political actors, and striking down federal election laws is an aggressive act of governance by the judiciary. And the justices’ language in these cases, holding up judges as noble instruments of the law and denigrating other officeholders as power-grubbing and superficial, serves to reinforce and justify the notion that they are uniquely qualified to govern us.Congressional OversightOn one day in 2020, the court decided two cases dealing with very similar subpoenas for information about President Donald Trump’s financial and business dealings. One set of subpoenas came from congressional committees; the other came from a New York State grand jury.Mr. Roberts wrote both opinions. In the case dealing with congressional subpoenas, he worried that Congress may aim to “harass the president or render him ‘complaisan[t] to the humors of the legislature.’” Accordingly, the subpoenas must be superintended by the courts, lest the legislature “‘exert an imperious controul’ over the executive branch and aggrandize itself at the president’s expense, just as the framers feared.” (The internal quotations there are from the Federalist Papers to provide a patina of antiquity.) He thus announced a multipart balancing test that applies only when Congress seeks the personal papers of the president.While that decision made the president a supercitizen vis-à-vis congressional subpoenas, the other opinion emphasized that he is just a regular citizen when it comes to judicial subpoenas. Unlike Congress, apparently, a grand jury requires “all information that might possibly bear on its investigation.” Whereas Mr. Roberts worried about Congress harassing the president, “we generally ‘assume[] that state courts and prosecutors will observe constitutional limitations.’”Not only do these opinions stymie congressional oversight — the papers were not handed over to the committees until nearly two years into the Biden administration — they also do so using language that elevates judicial institutions while denigrating legislative ones.Federal RegulationCongress is not alone; administrative agencies also bear the brunt of the justices’ disdain. In a series of recent cases that, for example, struck down the E.P.A.’s clean power plan for addressing climate change, the Republican-appointed justices have invented the so-called major questions doctrine. If they consider an issue major — and they have not told us what makes a question major beyond “vast economic and political significance” or “earnest and profound debate across the country” — then they will not allow an agency to regulate in that manner unless Congress has clearly stated that it may.To use an analogy: If a majority of justices determine that eating an ice cream cone is a major question, then it is not enough that Congress has empowered the agency to “eat any dessert it chooses.” It must legislate that the agency can “eat any dessert it chooses, including ice cream cones.” But Congress has no way of knowing whether eating an ice cream cone is major until it sees what a majority of justices have to say about it.In justifying this doctrine, the justices have raised the specter of out-of-control bureaucrats intruding on the liberty of citizens, undermining legal stability, serving only special interests and invading the domain of the states.You might think that this doctrine is meant to protect congressional power, except that it dictates to Congress how it must legislate, despite the fact that Congress has no way of knowing in advance what issues will be considered major. Moreover, as the legal scholar Beau Baumann has noted, Justice Neil Gorsuch and his colleagues have justified the doctrine on the grounds that Congress is too eager to delegate to agencies in order to avoid political responsibility, so the courts must keep Congress in line. In other words, the justices are paternalistically claiming to protect Congress from itself.***In all of these areas and in plenty more, the justices have seized for themselves an active role in governance. But perhaps even more consequentially, in doing so, they have repeatedly described other political institutions in overwhelmingly derogatory terms while either describing the judiciary in flattering terms or not describing it at all — denying its status as an institution and positioning it as simply a conduit of disembodied law.This is the ideological foundation for the Roberts-era judicial power grab.It is also worth noting that this ideological project is bipartisan. Republican-appointed justices dominate the court and have for many decades, but their Democratic-appointed colleagues — while dissenting in many individual opinions — evince no desire to contest the underlying disdain for other institutions or elevation of their own. When Mr. Roberts recently refused to testify before the Senate Judiciary Committee, nothing stopped Justices Sonia Sotomayor, Elena Kagan or Ketanji Brown Jackson from volunteering to testify, but they did not. Nothing is stopping them from publicly calling for a binding ethics code or from questioning not just the correctness but also the legitimacy of their institution’s assertiveness, but they have not.Recognizing the justices’ ideological project also points to the beginning of the solution. We ought to begin talking about the justices the way we talk about other political actors — recognizing that their first name is not Justice and that they, like other politicians, should be identified by their party.We should stop talking about another branch’s potential defiance of a judicial opinion as an attack on “the rule of law” and instead understand it as an attack on rule by judges, one that may (or may not) be a justified response to some act of judicial governance. And those other branches should be more willing — as they have at other moments in American history — to use the tools at their disposal, including cutting the judiciary’s funding, to put the courts in their place.In recent years, the judiciary has shown little but contempt for other governing institutions. It has earned a little contempt in return.Josh Chafetz (@joshchafetz) is a law professor at Georgetown and the author of “Congress’s Constitution.” This essay is adapted from a forthcoming article in The St. Louis University Law Journal.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      How to Police Gerrymanders? Some Judges Say the Courts Can’t.

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      A North Carolina court, following the lead of the U.S. Supreme Court, ruled that courts don’t have the ability to determine if a political map is legal, giving legislators a free pass.WASHINGTON — Courts decide vexing legal matters and interpret opaque constitutional language all the time, from defining pornography and judging whether a search or seizure is unreasonable to determining how speedy a speedy trial must be.And then there is the issue that some judges increasingly say is beyond their abilities to adjudicate. It was on display again last week, in North Carolina.The North Carolina Supreme Court said that it could find no way to determine when even egregious gerrymanders — in this case, lopsided partisan maps of the state’s General Assembly and its 14 congressional districts — cross the line between skewed but legal and unconstitutionally rigged. In addition, the justices said, any court-ordered standard “would embroil the judiciary in every local election in every county, city and district across the state.”The effect was to give the Republican-led legislature carte blanche to draw new maps for 2024 elections that lock in G.O.P. political dominance, even though the state’s electorate is split almost evenly between the two major parties.Under its current court-ordered map, North Carolina now elects seven Democrats and seven Republicans to the U.S. House. Maps drawn by the Republican legislature could mean 10 Republicans to four Democrats, or possibly 11 to three. Without judicial review, the only remedy is to vote the dominant party out using maps drawn to keep them in power.The 5-to-2 decision, which fell along party lines in a court led by Republicans, pointedly threw out a ruling by a Democrat-led court only a few months earlier that said such lines could — and should — be drawn. In that respect, the North Carolina ruling reinforced what seems to be a hardening partisan divide between jurists who believe unfair political maps should be policed and ones who do not.The U.S. Supreme Court also split along partisan lines in 2019 when it ruled 5 to 4, after decades of dithering, that it could not devise a legal standard to regulate partisan gerrymandering, though it suggested that state courts could.It is hard to separate party allegiance from jurists’ positions, said Paul M. Smith, the senior vice president of the Campaign Legal Center, a nonpartisan advocacy group that litigates voting rights issues.“One explanation would be that the courts decide cases about elections based on who will be helped,” he said. “On some days, I’m cynical enough to believe that.” Whether that consciously figures in court decisions, though, is less easy to say, he added.Nate Persily, a Stanford Law School professor and expert on election law and democracy, said that any standard for judging partisan gerrymanders has to be above reproach.“The response is always going to be that you’re picking winners and losers,” he said. “Unless we come up with some sort of clear mathematical test, I respect the argument that judges’ political preferences might creep into the process.” Passing judgment on a legislature’s constitutional authority to set political boundaries can be a fraught exercise. In 1962, one U.S. Supreme Court justice, Charles Evans Whittaker, who had heard the historic redistricting case Baker v. Carr, suffered a nervous breakdown during the court’s deliberations and skipped the final vote.But some say that just because it is hard to create fair district lines does not mean it cannot be done.“I think that’s intellectually dishonest and intellectually lazy,” Rebecca Szetela, a political independent and a member of the Michigan Independent Citizens Redistricting Commission, said in an interview. “We had a commission made up of 13 randomly selected voters of varying educational backgrounds, and somehow we were able to come up with fair standards.”The Michigan commissioners drew their first set of maps after the 2020 election, following orders not to give any party a “disproportionate advantage.” They relied on several statistical metrics to meet that standard. But overall, they decided that an acceptable range for the statewide ratio of votes to seats won would fall within five percentage points of their calculation of the state’s political preferences: 52 percent Democratic, 48 percent Republican.In practice, Ms Szetela said, the maps hewed closely to the calculated partisan divide. Still, some experts say that it is impossible to construct a standard that will be reliably fair. Daniel H. Lowenstein, an election-law expert at UCLA School of Law, said that would-be regulators of partisan gerrymanders by and large know little of how politics really works. He said that he picked up such an education during the 1970s while working in the California Secretary of State office, and later while running the state’s Fair Political Practices Commission.“There’s nothing in the Constitution that says elections have to be fair,” he said, “and that’s a good thing, because different people all have different concepts of what it means to be fair.”Peter H. Schuck, professor emeritus of law at Yale wrote a detailed analysis on the topic, “The Thickest Thicket,” in 1987. “I just don’t see any objective criteria that would be authoritative in assessing whether a gerrymander ought to be upheld or not,” he said. A few other state courts have set standards for partisan gerrymandering and applied them. Pennsylvania was the first state to strike down partisan gerrymanders in 2018, and the Alaska Supreme Court upheld a lower-court decision last month stating that gerrymandered State Senate seats violated the State Constitution’s equal protection clause.Many voting rights advocates say the same computer-driven advances that enable today’s extreme gerrymanders also make it possible to easily spot them.In particular, software programs can now generate thousands and even millions of maps of hypothetical political districts, each with small variations in their borders. Using statistical measures, those maps can be compared to a map being contested to gauge their partisan slant.In actual court cases, the technique has shown that some gerrymandered maps produce more lopsided partisan outcomes than 99 percent and more of the hypothetical ones.Measures of partisanship have improved, as social scientists employed data analytics to tease out the partisan impact of map changes. One yardstick, called the efficiency gap, gauges how much the votes of one party are wasted when its voters are disproportionately packed into one district or carved up among several. Another, partisan bias, measures the effectiveness of a gerrymandered map by calculating how many seats the same map would give each party in a hypothetical election where voters were split 50-50. There are many others, and each has its shortcomings. For example, voters sort themselves geographically, with a lopsided share of Democrats packed in cities and Republicans in rural areas, for reasons that have nothing to do with partisan skulduggery. And some metrics are useful only in particular situations, such as in states where party support is closely divided.In a 2017 hearing in a Wisconsin partisan gerrymander case, Chief Justice John G. Roberts Jr. called such metrics “sociological gobbledygook.” But if so, much of American jurisprudence carries the same label, said Nicholas Stephanopoulos, a Harvard University law professor who has been a leading advocate of standards to judge partisan gerrymanders.“In any voting rights case, people have to calculate racial polarization, which is a far more complex calculation than the efficiency gap,” he said. “You have to calculate the compactness of districts. You have to estimate voting patterns for minority voters and white voters.”“Tests involving some matter of degree are just ubiquitous in constitutional law,” he added, and nothing makes a partisan gerrymander case any different.Mr. Stephanopoulos and others also say that drawing a line between permissible and illegal political maps is not all that difficult. Courts make similar judgments in lawsuits claiming racial bias in redistricting, he noted. After the one-person, one-vote ruling in 1964, judges quickly set a limit — 10 percent — on how much political districts could deviate from the new requirement to have substantially equal populations.Some gerrymandering yardsticks have already been suggested. For example, a political map might be assumed constitutional unless measures of partisanship uniformly argued against it. At that point, the body that drew the map would have to demonstrate another compelling reason for the way boundaries were drawn.Critics like Professor Lowenstein argue that any dividing line between unfair and fair maps will have an unwanted consequence: Every subsequent map may be drawn to extract as much partisan gain as possible, yet fall just short of the legal standard for rejection.“The ultimate question,” Professor Schuck said, “is how crude a fit should a court be willing to accept?”Then again, he pointed out, the U.S. Supreme Court and the North Carolina Supreme Court have answered that question: Future political maps, they have ruled, can be as crude as their makers want them to be.“Declining to apply a rule is still going to validate or invalidate what politicians have done,” he said. “There’s no total innocence, no virginity, as it were.” More

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      Analysis: Fox News’s $787.5 Million Settlement Is the Cost of Airing a Lie

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      Fox News’s late-stage agreement with Dominion Voting Systems came with a rare acknowledgment of broadcasting false claims by the conservative media powerhouse.In settling with Dominion Voting Systems, Fox News has avoided an excruciating, drawn-out trial in which its founding chief, Rupert Murdoch, its top managers and its biggest stars would have had to face hostile grilling on an embarrassing question: Why did they allow a virulent and defamatory conspiracy theory about the 2020 election to spread across the network when so many of them knew it to be false?But the $787.5 million settlement agreement — among the largest defamation settlements in history — and Fox’s courthouse statement recognizing that the court had found “certain claims about Dominion” aired on its programming “to be false” — at the very least amount to a rare, high-profile acknowledgment of informational wrongdoing by a powerhouse in conservative media and America’s most popular cable network.“Money is accountability,” Stephen Shackelford, a Dominion lawyer, said outside the courthouse, “and we got that today from Fox.”During a news conference, a lawyer for Dominion Voting Systems said, “lies have consequences.”Pete Marovich for The New York TimesThe terms of the agreement, which was abruptly announced just before lawyers were expected to make opening statements, did not require Fox to apologize for any wrongdoing in its own programming — a point that Dominion was said to have been pressing for.Shortly after the agreement was reached, Fox said it was “hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.”The settlement carries an implicit plea of “no contest” to several pretrial findings from the presiding judge in the case, Eric M. Davis, that cast Fox’s programming in exceptionally harsh light. In one of those findings, the judge sided with Dominion in its assertion that Fox could not claim that its airing of the conspiracy theory — generally relating to the false claim that its machines “switched” Trump votes into Biden votes — fell under a legally protected status of “news gathering” that can shield news organizations when facts are disputed. The judge wrote, “the evidence does not support that FNN conducted good-faith, disinterested reporting.”In another finding, the judge wrote that the “evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true.”Through those findings, the judge seriously limited Fox’s ability to argue that it was acting as a news network pursuing the claims of a newsmaker, in this case, the president of the United States, who was the lead clarion for the false Dominion narrative.In those heady days before the first day of trial, Fox had been indicating that if it were to lose at trial, it would work up an appeal that would, at least partly, argue with those judicial rulings. Now they stand undisputed. By the end of the day on Tuesday, it was clear that Fox’s lawyers were engaged in an urgent calculus to take the financial hit rather than risk losing at trial. As so many legal experts before the trial had argued, Dominion had managed to collect an unusual amount of internal documentation from Fox showing that many inside the company knew the Dominion election conspiracy theory was pure fantasy. That extended to the network’s highest ranks — right up to Mr. Murdoch himself.Rupert Murdoch and his lieutenants could have faced a drawn-out trial that would have forced them to acknowledge why they broadcast conspiratorial claims that knew to be false.Mary Altaffer/Associated PressThat evidence appeared to bring Dominion close to the legal threshold in defamation cases known as “actual malice” — established when defamatory statements are “made with knowledge of its falsity or with reckless disregard of whether it was true or not.” (That bar, however, is not always easy to meet, and there are no guarantees in front of a jury.)“Dominion Voting had elicited much critical evidence that Fox had acted with actual malice or reckless disregard for the truth, which it could have proved to a jury, so the only question remaining would have been damages,” said Carl Tobias, a law professor at the University of Richmond. “Trial of the case also might have undermined the reputation of Fox when the evidence was presented in open court.”It was less surprising that Fox settled than that it did so at such a late stage on Tuesday. A trial would have seen Fox News personnel and Mr. Murdoch parrying with lawyers over the knowledge of falsity they held and why they did not take any action to stop it. The answers would have further unmasked the internal modus operandi of an organization that has long guarded its internal operations.The one question that only time will answer is whether the settlement was enough to cause Fox News to change the way it handles such incendiary and defamatory conspiracy content. The amount is huge — $787.5 million. Fox News certainly doesn’t want to see a similar settlement anytime soon as other legal cases loom, notably a $2.7 billion suit from another election technology company, Smartmatic.But Fox did manage to escape Dominion’s goal of an on-air admission or apology, meaning it did not have to force either on its audience, which did not hear much about the case on Fox’s shows to begin with.“It’s hard to say how damaging a decision against Fox would have been for the company beyond the financial cost of the verdict because their audience is very loyal and bought into the polarized perspective their opinion hosts present,” Michelle Simpson Tuegel, a trial lawyer, said in a statement. “But the reputational harm of having executives, including Chairman Rupert Murdoch, and hosts take the stand seems to have moved the parties towards a resolution.” More

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      Fox News Sanctioned by Judge for Withholding Evidence in Dominion Case

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      Judge Eric Davis also said an investigation was likely into Fox’s handling of documents and whether it had withheld details about Rupert Murdoch’s corporate role.WILMINGTON, Del. — The judge overseeing Dominion Voting Systems’ lawsuit against Fox News said on Wednesday that he was imposing a sanction on the network and would very likely start an investigation into whether Fox’s legal team had deliberately withheld evidence, scolding the lawyers for not being “straightforward” with him.The rebuke came after lawyers for Dominion, which is suing for defamation, revealed a number of instances in which Fox’s lawyers had not turned over evidence in a timely manner. That evidence included recordings of the Fox News host Maria Bartiromo talking with former President Donald J. Trump’s lawyers, Sidney Powell and Rudy Giuliani, which Dominion said had been turned over only a week ago.In imposing the sanction on Fox, Judge Eric M. Davis of the Delaware Superior Court ruled that if Dominion had to do additional depositions, or redo any, then Fox would have to “do everything they can to make the person available, and it will be at a cost to Fox.”He also said he would very likely appoint a special master — an outside lawyer — to investigate Fox’s handling of discovery of documents and the question of whether Fox had inappropriately withheld details about the scope of Rupert Murdoch’s role. Since Dominion filed its suit in early 2021, Fox had argued that Mr. Murdoch and Fox Corporation, the parent company, should not be part of the case because Mr. Murdoch, the chair, and other senior executives had nothing to do with running Fox News. But in the past few days, Fox disclosed to Dominion that Mr. Murdoch was a corporate officer at Fox News.Dominion, a voting technology company, accused Fox and some of the network’s executives and hosts of smearing its reputation by linking it to a nonexistent conspiracy to rig voting machines in the 2020 presidential election. Fox had said that it was just reporting on newsworthy allegations from Mr. Trump, who was then the president, as well as his lawyers and supporters, who told Fox’s hosts and producers that they would prove their allegations in court.Fox’s lawyers had only recently disclosed that Rupert Murdoch, the executive chairman of Fox Corp., was also the executive chair of Fox News, a role that pointed to more responsibility for its broadcasts.Mike Segar/ReutersJury selection starts on Thursday, and the trial is scheduled to begin on Monday. It wasn’t immediately clear whether Dominion would avail itself of the judge’s ruling allowing its lawyers to conduct additional depositions. But it was clear from Judge Davis’s stern reprimand of Fox’s lawyers on Wednesday — and similarly piqued remarks from him during another hearing on Tuesday — that he was losing patience. The judge told Fox’s lawyers to retain all internal communications, starting from March 20 of this year, that related to Mr. Murdoch’s role at Fox News. That was the date the lawyers submitted a letter to Judge Davis asking that Mr. Murdoch and other Fox Corporation executives not be forced to testify at the trial in person, saying they had “limited knowledge of pertinent facts.” The letter did not mention that Mr. Murdoch was also a Fox News executive.Judge Davis said he would weigh whether any additional sanctions should be placed on Fox.He also said he was very concerned that there had been “misrepresentations to the court.”“This is very serious,” Judge Davis said.Davida Brook, a lawyer for Dominion, told the court that they were still receiving relevant documents from Fox, with the trial just days away.“We keep on learning about more relevant information from individuals other than Fox,” she said. “And to be honest we don’t really know what to do about that, but that is the situation we find ourselves in.”She pointed to one email that had recently been handed over, between Ms. Bartiromo and Ms. Powell on Nov. 7, 2020. In the email, Ms. Powell was forwarding evidence to Ms. Bartiromo that Dominion said was proof Fox had acted recklessly: an email from a woman Ms. Powell relied on as a source who exhibited signs of delusion, claiming, for instance, that she was aware of voter fraud because she had special powers, including the ability to time travel.“I just spoke to Eric and told him you gave very imp info,” Ms. Bartiromo wrote back to Ms. Powell, most likely referring to Eric Trump, Mr. Trump’s son.Ms. Brook also played two recordings for the court of pre-interviews, which are preliminary conversations before an on-air interview, conducted by Ms. Bartiromo that Ms. Brook said were received only after they were revealed in legal complaints filed by Abby Grossberg, a former Fox News producer who is suing the network.The evidence included recordings of the Fox News host Maria Bartiromo talking with former President Donald J. Trump’s lawyers, Sidney Powell and Rudy Giuliani.Roy Rochlin/Getty ImagesIn one of the recordings, on Nov. 8, 2020, Ms. Bartiromo asks Mr. Giuliani about Dominion’s software. In it, he admits that he doesn’t have hard evidence to back up the claim that the software could be manipulated, saying it was “being analyzed right now.” When Ms. Bartiromo asks about a conspiracy theory circulating at the time that claimed Dominion was connected to Representative Nancy Pelosi of California, Mr. Giuliani says: “Yeah, I’ve read that. I can’t prove that yet.”A Fox News spokeswoman said in a statement on Wednesday: “As counsel explained to the court, Fox produced the supplemental information from Ms. Grossberg when we first learned it.”Justin Nelson, another lawyer for Dominion, told Judge Davis that had Fox Corporation, the parent company, been quicker to share the information about Mr. Murdoch’s role as an officer of Fox News, the universe of documents Dominion could have obtained during discovery from him and other Fox Corporation executives would have been much larger. He also said that Fox might have failed to produce relevant documents.“We have been litigating based upon this false premise that Rupert Murdoch wasn’t an officer of Fox News,” he said.The question of whether Mr. Murdoch made decisions as a corporate officer of Fox News cuts to the heart of Dominion’s case. It has tried to prove — and Fox has repeatedly denied — that Rupert and Lachlan Murdoch, the chief executive of Fox Corporation, were closely involved in overseeing Fox News coverage of the 2020 election. Their decisions, Dominion has argued, directly affected what Fox broadcast about the voting technology company and, more broadly, fed a climate inside the network where hosts and producers amplified misinformation as part of a plan to win back viewers who had stopped watching after Mr. Trump’s loss.Proving so would mean that the larger Fox Corporation — not just Fox News — could also be found liable for defaming Dominion.Mr. Nelson argued that the case should be split in two so that Dominion lawyers could separately pursue action against Fox Corporation now that Dominion could obtain more information from executives. Judge Davis declined, but he expressed concern that Fox’s legal team had not been forthcoming with the information, despite being asked multiple times whether Mr. Murdoch was a corporate officer for Fox News.“I need people to tell me the truth,” he said. “And by the way, omission is a lie.”Dan K. Webb, a lawyer for Fox, pushed back on the assertion from Dominion, saying that both he and even Mr. Murdoch didn’t realize he also held the executive chair role at Fox News.“On a day-to-day basis, Mr. Rupert Murdoch had nothing to do with making decisions with what goes on the air on Fox News,” Mr. Webb said.In an emailed statement, a Fox News spokeswoman said: “Rupert Murdoch has been listed as executive chairman of Fox News in our S.E.C. filings since 2019 and this filing was referenced by Dominion’s own attorney during his deposition.”Judge Davis admonished Fox’s lawyers, saying he had previously asked for clarity on who had corporate responsibilities at Fox News but had not heard back.“What do I do with attorneys that aren’t straightforward with me?” he asked. More

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      Así fue la audiencia en la que se formularon los cargos contra Trump

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      Estos son algunos de los momentos más importantes de la comparecencia del expresidente ante la corte.NUEVA YORK — El expresidente Donald Trump se sentó en silencio en la sala del juzgado de Manhattan, el martes, mientras los fiscales formulaban las acusaciones en su contra. El procedimiento fue su primera experiencia como acusado penal.Una transcripción de 32 páginas de la audiencia solo ofrece un indicio de las consecuencias dramáticas de la comparecencia y el largo proceso legal que se avecina. Es uno de los procesos judiciales más esperados del mundo. Y, sin embargo, solo lo vieron de primera mano las pocas decenas de personas que estuvieron presentes en la sala donde se dieron a conocer los delitos que se le imputan a Trump.A continuación, presentamos algunos de los momentos más importantes de la audiencia:La audiencia comienza y Trump hace su declaraciónEL TRIBUNAL: Vamos a instruir al señor Trump.EL SECRETARIO DEL JUZGADO: Donald J. Trump, el Gran Jurado del condado de Nueva York ha presentado la acusación formal 71543 del año 2023 en la que se le imputan los delitos de 34 cargos de falsificación de registros empresariales en primer grado. ¿Cómo se declara ante esta acusación formal: culpable o no culpable?TRUMP: No culpable.En la sala del tribunal, las persianas estaban cerradas cuando Trump entró cerca de las 02:30 p. m., con un traje azul marino, corbata roja y un semblante inexpresivo. Estuvo flanqueado por agentes judiciales armados, mientras caminaba por el pasillo hacia el frente. Se autorizó a los fotógrafos para que entraran al palco del jurado para tomarle una foto, y él giró la cabeza y miró fijamente a las cámaras hasta que los fotógrafos tuvieron que marcharse.La comparecencia de Trump no comenzó de inmediato. Se vio obligado a esperar unos 10 minutos, sentado en silencio en la mesa de la defensa, mientras un abogado que representaba a organizaciones de medios de comunicación pedía que se concediera a los periodistas más acceso al procedimiento. El exmandatario hizo una mueca de burla cuando ese abogado afirmó que se podía confiar en los periodistas profesionales.Cuando el abogado terminó de hablar, el juez Juan Merchan, quien en la transcripción es identificado como “El tribunal”, pidió que Trump compareciera. Al expresidente se le leyeron los cargos que se le imputaban: 34 delitos graves de falsificación de registros empresariales. En la silenciosa sala, Trump se inclinó hacia delante y, hablando por el micrófono de la mesa de la defensa, dijo que era no culpable.Un fiscal presenta el casoSR. CONROY: El acusado, Donald J. Trump, falsificó registros empresariales de Nueva York con el fin de ocultar una asociación delictiva para socavar la integridad de las elecciones presidenciales de 2016 y otras violaciones a las leyes electorales.Chris Conroy, fiscal de la oficina del fiscal del distrito de Manhattan, se levantó y comenzó a detallar los cargos. Se derivan del pago de una suma de dinero para silenciar a una actriz porno, Stormy Daniels, que Michael Cohen, quien era un colaborador de Trump, pagó en el periodo previo a las elecciones de 2016. Trump reembolsó el dinero a Cohen después de ser elegido. Los fiscales acusan al exmandatario de orquestar la creación de registros empresariales falsos relacionados con los reembolsos.La falsificación de registros empresariales solo es un delito grave en el estado de Nueva York cuando se comete con la intención de “cometer u ocultar” otro delito. Al decir que Trump había falsificado registros “para ocultar una asociación delictiva”, Conroy ofreció un posible avance del caso más amplio de la fiscalía contra Trump.Los miembros del equipo de la defensa recibieron copias de la acusación. Trump le entregó una copia a uno de sus abogados, Joseph Tacopina. El exmandatario fue la única persona en la mesa de la defensa que no aceptó una copia.Las recientes publicaciones de Trump en las redes sociales se incorporan al expedienteUn momento extraordinario sucedió cuando Conroy comenzó a referirse a las publicaciones recientes que Trump ha hecho en las redes sociales. El expresidente prometió que en caso de que lo acusaran habría “muerte y destrucción” y publicó lenguaje racista e imágenes amenazantes dirigidas contra el fiscal de distrito Alvin Bragg.SR. CONROY: Nos preocupa mucho el peligro potencial que este tipo de retórica supone para nuestra ciudad, para los posibles jurados y testigos, así como para el proceso judicial.A continuación, Conroy repartió copias impresas de los mensajes de Trump al juez y al equipo de la defensa. El expresidente le dio su copia a Tacopina, pero un minuto después se la pidió de vuelta, haciéndole señas con la mano derecha. Otro de sus abogados, Todd Blanche, se opuso enérgicamente a los comentarios de Conroy sobre las publicaciones en las redes sociales.SR. BLANCHE: Es cierto que el expresidente Trump ha respondido y que lo ha hecho con contundencia. Es cierto que, como parte de esa respuesta, está absolutamente frustrado, molesto y cree que su presencia en esta sala del tribunal es una grave injusticia.Blanche afirmó que Trump “tiene derechos y se le permite pronunciarse públicamente”.Eso pareció incitar a Merchan, quien habló con calma y seriedad, cuando respondió que no tenía la intención inmediata de imponerle una “orden de mordaza” a Trump, en contra de las preocupaciones expresadas recientemente por el equipo jurídico del expresidente. Los fiscales no han solicitado una orden de mordaza.EL TRIBUNAL: Ciertamente, el tribunal no impondría una orden de mordaza en este momento aunque se solicitara. Esas restricciones son las más serias y menos intolerables sobre los derechos de la Primera Enmienda. Eso aplica por partida doble al señor Trump, porque es candidato a la presidencia de Estados Unidos. Así que es evidente que esos derechos de la Primera Enmienda tienen una importancia crítica.Pero Merchan, quien es juez de la Corte Suprema estatal desde 2009, le advirtió a la defensa que hablara con Trump “y cualquier otra persona con la que sea necesario y les recuerden que, por favor, se abstengan de hacer declaraciones que puedan incitar a la violencia o a los disturbios civiles”.La fiscalía detalla las posibles restricciones a TrumpSRA. MCCAW: El acusado no puede proporcionar los materiales que recibe a través del proceso de presentación de pruebas a terceros, lo que incluye a la prensa, y no puede publicarlos en las redes sociales.Mientras Trump seguía sentado en silencio, Catherine McCaw, otra fiscal, le dijo al juez que su equipo estaba trabajando con los abogados de Trump para redactar una orden de protección, un documento que le pondría ciertas restricciones al exmandatario.La fiscal explicó que una de esas restricciones le prohibiría al expresidente publicar material específico del caso en las redes sociales o compartirlo con los reporteros. Si Trump viola alguna de las restricciones establecidas, Merchan decidiría si lo sanciona y cómo hacerlo.Trump vuelve a hablarA medida que se desarrollaba su audiencia de instrucción, Trump se mostraba cada vez más inquieto. Entrelazaba y desentrelazaba los dedos una y otra vez. Cruzaba y descruzaba los brazos. Golpeó la mesa con los nudillos. En una ocasión, infló las mejillas en un suspiro impaciente.Por último, más de media hora después de que hizo su declaración de inocencia, habló de nuevo —tras la indicación de sus abogados—, pero solo para responderle al juez cuando informó sobre su derecho a estar presente en el proceso y de las formas en que podía perder ese derecho.EL TRIBUNAL: Si perturba hasta tal punto que afecte a mi capacidad para presidir este caso y mi capacidad para garantizar que el caso se juzgue de la manera que debe juzgarse para ambas partes, tengo la autoridad para sacarlo de la sala y continuar en su ausencia, ¿comprende?ACUSADO SR. TRUMP: Sí, comprendo.El juez solicita la presencia de TrumpEL TRIBUNAL: Espero que todos los demás acusados comparezcan ante el tribunal, incluso los acusados de alto perfil.Teniendo en cuenta que Trump estaba acusado de delitos no violentos, los fiscales tenían prohibido siquiera solicitar su encarcelamiento. Mientras Merchan se preparaba para dejar ir al expresidente, Blanche insinuó que Trump podría no comparecer a su próxima cita con el tribunal, prevista para el 4 de diciembre. Cuando se le preguntó por su razonamiento, Blanche citó “el increíble gasto y esfuerzo y los problemas de seguridad” que conllevó la comparecencia.El juez reconoció que había sido una empresa enorme para todos los implicados. Pero señaló que faltaba “bastante para diciembre”. Por último, señaló que “en aras de la transparencia y para garantizar la imparcialidad de las normas jurídicas”, iba a discrepar de Blanche. La implicación: en la medida de lo posible, el juez pretende tratar a Trump como a cualquier otro acusado.Cuando se levantó la sesión alrededor de las 03:25 p. m., Trump fue la persona de la mesa de la defensa que se levantó con más lentitud. Se alisó las solapas de la chaqueta de su traje azul, ordenó un montón de papeles que había frente a él y salió de la sala.Embed Only More

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      What It Was Like Inside the Courtroom During Trump’s Arraignment

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      Here are some of the most important moments from the hearing where criminal charges against Donald Trump were unveiled.Former President Donald J. Trump sat quietly in a Manhattan courtroom on Tuesday as prosecutors described the accusations against him. The proceeding marked his first experience as a criminal defendant.A 32-page transcript of the hearing offers only a hint of the dramatic implications of the arraignment and the lengthy legal process to come. It was one of the most-anticipated court proceedings in the world. And yet, it was seen firsthand only by the few dozen people who were present in the courtroom where the charges against Mr. Trump were unveiled.Here are some of the most important moments from the arraignment:The hearing begins, and Mr. Trump pleads.THE COURT: Let’s arraign Mr. Trump.THE CLERK: Donald J. Trump, the grand jury of New York County has filed indictment 71543 of 2023 charging you with the crimes of 34 counts of falsifying business records in the first degree.How do you plead to this indictment, guilty or not guilty?DEFENDANT MR. TRUMP: Not guilty.The shades were down in the courtroom when Mr. Trump entered around 2:30 p.m., wearing a navy suit, a red tie and a blank expression. Armed court officers flanked him on both sides as he walked down the aisle toward the front. Photographers were briefly allowed to enter the jury box to take his picture, and he turned and stared at the cameras until their operators were made to leave.Mr. Trump’s arraignment did not begin immediately after he came in. He was compelled to wait about 10 minutes, seated silently at the defense table, as a lawyer representing media organizations requested that journalists be granted more access to the proceeding. Mr. Trump visibly scoffed when that lawyer asserted that professional journalists could be trusted.When that lawyer was finished speaking, the judge, Juan M. Merchan, referred to in the transcript as “The Court,” called for Mr. Trump to be arraigned. The former president was read the charges against him — 34 felony counts of falsifying business records. In the hushed courtroom, Mr. Trump leaned forward and, speaking into the microphone at the defense table, said that he was not guilty.A prosecutor previews the case.MR. CONROY: The defendant, Donald J. Trump, falsified New York business records in order to conceal an illegal conspiracy to undermine the integrity of the 2016 presidential election and other violations of election laws.Chris Conroy, a prosecutor with the Manhattan district attorney’s office, then stood up and began to detail the charges. They stem from a hush-money payment that Mr. Trump’s former fixer, Michael D. Cohen, paid to a porn star, Stormy Daniels, in the run-up to the 2016 election. Mr. Trump reimbursed Mr. Cohen after he was elected. Prosecutors are accusing Mr. Trump of orchestrating the creation of false business records related to the reimbursements.Falsifying business records is only a felony in New York State when it is committed with the intent to “commit or conceal” another crime. In saying that Mr. Trump had falsified records “to conceal an illegal conspiracy,” Mr. Conroy offered a potential preview of the office’s broader case against Mr. Trump.Members of the defense team were handed copies of the indictment. Mr. Trump passed a copy to one of his lawyers, Joseph Tacopina. The former president was the only person at the defense table not to accept a copy.Mr. Trump’s recent social media posts are entered into the record.An extraordinary moment came when Mr. Conroy began to reference Mr. Trump’s recent social media posts. The former president promised that “death and destruction” would follow were he to be charged and posted racist language and threatening images directed at the district attorney, Alvin L. Bragg.MR. CONROY: We have significant concern about the potential danger this kind of rhetoric poses to our city, to potential jurors and witnesses, and to the judicial process.Mr. Conroy then passed out printed copies of Mr. Trump’s posts to the judge and defense team. Mr. Trump passed his copy to Mr. Tacopina, but a minute later requested it back, beckoning with his right hand. Another of his lawyers, Todd Blanche, objected strongly to Mr. Conroy’s comments about the social media posts.MR. BLANCHE: It is true that President Trump has responded, and responded forcefully. It is true that as part of that response, he’s absolutely frustrated, upset, and believes that there is a grave injustice happening with him being in this courtroom today.Mr. Blanche asserted that Mr. Trump “ has rights, he’s allowed to speak publicly.”That appeared to prompt Justice Merchan, who spoke calmly and soberly, to respond that he had no immediate intention of placing a “gag order” on Mr. Trump, counter to concerns expressed recently by the former president’s legal team. Prosecutors have not requested a gag order.THE COURT: Certainly, the court would not impose a gag order at this time even if it were requested.Such restraints are the most serious and least intolerable on First Amendment rights. That does apply doubly to Mr. Trump, because he is a candidate for the presidency of the United States. So, those First Amendment rights are critically important, obviously.But Justice Merchan, a judge in the State Supreme Court since 2009, did warn the defense to speak to Mr. Trump “and anybody else you need to, and remind them to please refrain from making statements that are likely to incite violence or civil unrest.”The prosecution details potential constraints on Mr. Trump.MS. MCCAW: Defendant may not provide the materials he receives through the discovery process to any third party, including the press, and he may not post them to social media.As Mr. Trump continued to sit in silence, Catherine McCaw, another prosecutor, told the judge that her team was working with Mr. Trump’s lawyers to draft a protective order, a document that would place certain constraints on Mr. Trump.One of those constraints, she said, would bar the former president from posting certain case material on social media, or from sharing it with reporters. Were Mr. Trump to violate any constraints that are in place, Justice Merchan would decide whether and how to sanction him.Mr. Trump speaks again.As his arraignment went on, Mr. Trump increasingly fidgeted. He wove and unwove his fingers repeatedly. He crossed and uncrossed his arms. He knocked his knuckles on the hardwood table. Once, he puffed out his cheeks in a sigh.Finally, more than a half-hour after he entered his plea, he spoke again — after being prompted by his lawyers — but only to respond to Justice Merchan when the judge informed the former president about his right to be present at proceedings — and the ways that right could be forfeited.THE COURT: If you become disruptive to such a degree that it affects my ability to preside over this case and my ability to ensure that the case is treated the way it needs to be treated for both sides, I do have the authority to remove you from the courtroom and continue in your absence, do you understand that?DEFENDANT MR. TRUMP: I do.The judge requests Mr. Trump’s presence.THE COURT: I expect all other defendants to appear in court, even high-profile defendants.Given that Mr. Trump was charged with nonviolent crimes, prosecutors were barred from even requesting that he be put in jail. As Justice Merchan prepared to release the former president, Mr. Blanche suggested that Mr. Trump might not appear at his next court date, scheduled for Dec. 4. When asked for his reasoning, Mr. Blanche cited “the incredible expense and effort and security issues” that attended the arraignment.The judge acknowledged that it had been a huge undertaking for everyone involved. But he noted that December was “quite a ways out.” Finally, he noted that “in the interest of transparency and assuring the rules of law evenhandedly,” he was going to disagree with Mr. Blanche. The implication: As much as possible, the judge intends to treat Mr. Trump like any other defendant.When the arraignment adjourned around 3:25 p.m., Mr. Trump was the slowest person at the defense table to stand up. He smoothed the lapels of his blue suit jacket, neatened a stack of paper in front of him and walked out of the courtroom.Embed Only More