AYESHA RASCOE, HOST:
This week, Donald Trump becomes America's first former president to be on criminal trial. It's known as the Stormy Daniels hush money case, and jury selections begin tomorrow in Manhattan. Karen Friedman Agnifilo joins us now. She's a lawyer who worked in the Manhattan district attorney's office. Welcome to the program.
KAREN FRIEDMAN AGNIFILO: Thank you for having me.
RASCOE: So first off, you left the DA's office in 2021. Were you involved in any of the cases involving Trump or his business or associates?
FRIEDMAN AGNIFILO: I was not really, no. I was not. Obviously, I was the No. 2 in the office, and so I was aware of them. I was in a couple of meetings involving a different case. I've never been involved in this particular case, no.
RASCOE: Stormy Daniels is the adult film actress that prosecutors say Trump paid $130,000 to keep quiet about an affair. But that's not the illegal part of this, right?
FRIEDMAN AGNIFILO: That is correct. It's the falsifying the business records and hiding the source of the money that makes it criminal.
RASCOE: Falsifying business records is typically a misdemeanor, not a felony. Do you think it's a stretch for the DA's office to bring felony charges with the claim that the hush money was spent to facilitate campaign finance and tax crimes?
FRIEDMAN AGNIFILO: No, not at all. There's many different parts of the penal law where there are different grades or different levels of crime, depending on aggravating factors. And so, yes, there are misdemeanor falsifying business records. But when there are aggravating factors present, like there are here, then it bumps it up to a felony. And the felony falsifying business records - this is very much something that prosecutors will prosecute all the time. And really, what they have to prove is that there was some sort of criminal intent involved in the falsifying business records, that it was in order to either commit or conceal a crime. And here, the DA's office has alleged that there were three crimes that Donald Trump intended to either commit or conceal, and that involves both federal and state election law charges as well as tax crimes.
RASCOE: OK. And would Donald Trump - would he have to have knowledge that these were crimes that he was trying to cover up? Or, you know, the argument may be that he just didn't want to upset his wife or I mean, he hasn't admitted to an affair. I should say that. He has not admitted to an affair. But does he have to have knowledge that these were crimes?
FRIEDMAN AGNIFILO: Well, he has to have the intention, right? It's all about the intention. He doesn't have to have completed these crimes. And I think there's going to be a lot of evidence that is going to come out at the trial from people like Hope Hicks and Kellyanne Conway, who are going to talk about how back then, in 2016, they were desperately trying to suppress this kind of negative information from coming out on the heels of the very damaging Access Hollywood tape that came out, saying he can grab women by their genitals, you know, with impunity. And, you know, back then that definitely had a big impact on the electorate. I think they were absolutely trying to bury this type of information and this type of news from coming out. And I also think it's going to be interesting. There's a tape recording that they're going to play at the trial where Donald Trump talks about, well, now that I won the election, do I have to pay her back? I mean, it's very clear this was about the election.
RASCOE: You've argued cases before the judge in this case, Judge Juan Manuel Merchan, and it's the same judge who oversaw the criminal tax fraud case against Trump's company, which the Trump Organization lost. Tell us what to expect from the bench during this trial.
FRIEDMAN AGNIFILO: So this judge - I've been before this judge many times, and he keeps to himself. He's not chatty with the parties. He doesn't socialize with lawyers, you know, that I know of. You wouldn't really know much about him. He doesn't make small talk. He comes in, he just sits at the bench and he does his job. And he - no one would describe him as either pro-prosecution or pro-defense. He calls balls and strikes as he sees them. And he's just a judge's judge. He's very down the middle, very fair, very measured. He will also keep control of the courtroom and make sure that the jury doesn't get any irrelevant or inadmissible or prejudicial information. You know, he'll protect the jury from that.
RASCOE: As we said, jury selection begins tomorrow. What are you watching for, and how difficult will it be to seat a jury in a case like this?
FRIEDMAN AGNIFILO: I think the thing that everyone's going to be looking for is anyone who's - you might want to call him the stealth juror, who's trying to get on the jury because they have an agenda one way or another. You don't want that person on the jury. You want someone who has no ax to grind in any direction. You want someone who's going to be fair and impartial, listen to the evidence and make a determination. I mean, the good thing is you have a very experienced lawyers, and they will be asking targeted questions to try and suss that information out. You also have people doing research, if they can, on jurors, and they'll look at their social media and they'll see what's publicly available about them. You don't want the jury to hang. You want them to make a decision, a unanimous decision, because a hung jury means they would have to do it all over again.
RASCOE: That's attorney Karen Friedman Agnifilo. So thank you so much for speaking with us.
FRIEDMAN AGNIFILO: Thank you for having me. Transcript provided by NPR, Copyright NPR.
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