Closing arguments are set to take place Tuesday in the "hush money" trial of former President Donald Trump, and a jury will decide whether to make him the first former president and major party nominee convicted of felony charges.
If he's found guilty, could he actually serve jail time? It's a question that is being debated as the trial comes to a close. Tom Heffelfinger is a former United States Attorney for the State of Minnesota and has over four decades of legal experience in cases like Trump's. He says it is a legitimate possibility, but in large part due to Trump being found in contempt during the case.
"Because of the contempt, where he's already been found in contempt of the court, and they've sort of sat on that issue, I suspect if he were found guilty, he would do some time," says Heffelfinger who spoke to WCCO's Chad Hartman. "But we're not talking years, we're talking months maybe. Or weeks. But that would be the most."
Heffelfinger also has high praise for Judge Juan Merchan's handling of the trial so far.
"I think he has been stellar," says Heffelfinger who twice was appointed U.S. Attorney for Minnesota. "He has run a tight courtroom, but at the same time he has allowed both parties, not just the prosecution, not just the defense, but he's allowed them to make their case, to make their arguments. I think he's sort of bit his tongue a couple of times in order to allow that to happen. He sort of understands the tenets that you have to give the parties the opportunity to make their case and I think he's done that."
One overlooked aspect to the case are the jury instructions. Heffelfinger says in this instance, they'll be crucial.
"It's probably the most important debate that we've heard in the last three weeks," Heffelfinger explained. "Cases, especially white-collar cases, especially cases involving intent or involving some confusion, and there's a little confusion here, the jury instructions are crucial. So when the judge lays out these instructions, they will listen to those and they will follow that."
Heffelfinger also says he's confident the case should have happened.
"I do, not just the fact that he had an affair with a women, but the fact is that he concealed that, at a time when it was concealed to enhance his electoral position. He also did it in a way that mislead the people of New York."
He adds that he doesn't think the case is easy, or was well tried saying the prosecution made key mistakes especially when it came to the testimony of Michael Cohen, Trump's former lawyer and "fixer".
"The prosecution should not have been surprised, and they were," he says.
EYES WIDE SHUT
Trump has repeatedly denied reports from journalists watching him via closed-circuit television that he is sleeping in court, insisting on his social media site that he simply closes “my beautiful blue eyes, sometimes, listen intensely, and take it ALL in!!!”
“No, I don’t fall asleep,” he told Telemundo Miami. “I sometimes will sit back, close my eyes. I hear everything perfectly. At some point I may fall asleep. But I will let you know when that is.”
Eliason said Trump’s demeanor was “definitely” something jurors would notice and could potentially perceive as disrespectful if they feel ”he’s acting like it’s not even worth his attention” or think he’s taking a nap.
“If it’s a tactic to try to make it look like he’s not concerned about the testimony, I don’t think that would play well,” he said. “I guess if he’s really just sort of listening with eyes closed, meditating or whatever, that doesn’t seem so bad. But I think falling asleep, the jury would find quite disrespectful.”
On the other hand, he added, “You don’t want him to get really agitated” as he did during previous trials.
Actually, sleeping in court would be highly unusual for a defendant.
“I have witnessed lawyers fall asleep, but never a defendant in a criminal case. Their lives are at stake and they don’t sleep in my experience,” said Stephen A. Saltzburg, a professor at the George Washington University Law School who has been writing about the case.
“It’s possible it’s all an act to show: ‘Hey, this is bogus, I’m not going to pay attention to it,’” he added, but that would also be unhelpful. “Since the jury has to pay attention, that doesn’t send a message that you respect this whole jury process.”
‘YOUR CLIENT IS UPSET’
Trump hasn’t been entirely sedated. During jury selection, he appeared alert and engaged, and was at one point reprimanded by the judge for his visible reactions to one juror’s answers.
“(W)hile the juror was at the podium maybe 12 feet from your client, your client was audibly uttering something ... he was audibly gesturing,” Judge Juan Merchan warned one of his lawyers in April.
“I won’t tolerate that. I will not have any jurors intimidated in this courtroom,” he went on. “I want to make that crystal clear.”
Later, when Stormy Daniels was on the stand, Trump’s reaction to her testimony once again prompted Merchan to summon his lawyers to the bench.
“I understand that your client is upset at this point, but he is cursing audibly, and he is shaking his head visually and that’s contemptuous. It has the potential to intimidate the witness and the jury can see that,” Merchan said, according to the transcript.
But as the trial dragged on, and particularly during his ex-attorney Michael Cohen’s testimony, Trump most often sat in repose, leaning back in his chair, with his eyes closed, his lips pursed and his head tilted back or to the side.
He shifted from time to time — sometimes to scratch an itch. Sometimes he appeared to doze off, his mouth falling agape as he sat for hours in the fluorescent-lit courtroom.
Other times, he re-engaged, sitting upright, chatting with his lawyers or scribbling and passing notes. He often leafed through stacks of papers, looked around the courtroom or sat upright, with his arms folded across his chest. He appeared especially alert and engaged during defense witness Robert Costello’s combative testimony, during which the judge threatened to remove Costello from the stand.
But afterward, he returned to the eyes-closed, head-back position that became his default.
PAST OUTBURSTS
It’s been a marked contrast from his demeanor at his earlier civil trials, when Trump stormed out of the courtroom, actively sparred with judges and made no effort to shield his disdain.
During his business fraud civil trial, during which Cohen also testified, Trump blasted a court clerk from the stand, lashed out at the judge and, at one point, marched out of the courtroom. The judge in that case issued Trump a $355 million penalty.
And in his E. Jean Carroll defamation case, he was reprimanded for muttering while she spoke, told the judge he would love it if he were removed from the courtroom, and stood up and walked out during Carroll’s closing argument, in front of the jury.
Saltzburg said he believes Trump’s behavior in that case is one of the reasons the jury awarded her a whopping $83.3 million.
“They wanted to send a clear message to him and they thought it would take a lot of money to do it,” he said.
In this case, said Jeffrey S. Jacobovitz, a trial attorney with extensive experience in white-collar criminal defense, Trump’s demeanor is “something that a jury would certainly notice.”
The perception that he’s been sleeping “is likely to have a negative effect on the jury,” he said, adding, “I think I would prefer angry Trump.”
The Associated Press contributed to this story.