Editor’s Note: Elliot Williams is a CNN legal analyst. He is a former deputy assistant attorney general at the Justice Department and is currently a principal at Raben, a public affairs firm. Follow him on Twitter @elliotcwilliams. The views expressed in this commentary are his own. View more opinion on CNN.
Courtrooms don’t lend themselves to keeping people awake. They are notoriously quiet places where people are required to remain seated almost all of the time. The air is often stagnant and the ever-so-distracting handheld devices that are our lifelines to (and barrier from) the world around us are strictly forbidden.
That’s the kind of environment in which Donald Trump, a defendant in a criminal courtroom in Manhattan (who also happens to be the 45th President of the United States) appeared to doze off in court this week.
Jury selection resumed Thursday in the case against Trump and there was plenty of action in the courtroom, with a full jury getting seated only hours after two of the seven initially-selected selected jurors were dismissed earlier in the morning. All of this in the midst of unresolved questions about whether Trump violated his gag order by making statements on social media about prospective jurors, which will be addressed at a hearing next week.
Still, the question remains: Can Trump consistently stay awake through the long slog of a criminal trial?
On Monday, Trump, who is on trial for falsifying business records to cover up a sex scandal, appeared to catch a few minutes of shut-eye in his criminal case for falsifying business records to cover up a sex scandal. As reported by The New York Times’ Maggie Haberman, Trump seemed to doze off, “his mouth going slack and his head drooping onto his chest.” Other news reports said that Trump appeared to nod off again during the second day of jury selection on Tuesday.
One might chuckle at the thought of a high-profile figure “catching some Z’s” at an inopportune time. Still, it was a striking image that simulcast three individuals in one: a criminal defendant; one of the most powerful people on the planet; and a napping old man. And, despite their bluster, none of those three faces of Trump has meaningful control of the legal system of which they are now an unwilling participant. Thursday’s back-and-forth over jurors demonstrated that nothing will be straightforward in the prosecution of a former President, and that this legal proceeding won’t be over any time soon.
Setting aside Thursday’s drama — and in fairness to the former President who might have been struggling at times to stay awake — court proceedings typically are boring in a way in which the average member of the public might not appreciate.
As a former prosecutor and attorney in Congress, I have attended more trials and hearings than I can count over the years and can attest that more than anything else, the gears of justice are not made for the 24-hour news cycle. What might be resolved in an eight-minute final segment of an episode of “Law and Order” might be drawn out over days of painstaking testimony. It can take months, if not years (even in cases in which a defendant is not deliberately attempting to slow proceedings down) before a matter finally gets to trial.
People have fallen asleep in far less hospitable environments: Pope Benedict XVI did once when saying a mass in Malta; Former Italian Prime Minister Silvio Berlusconi dozed at the dedication of the George W. Bush Presidential Center; and the late Supreme Court Justice Ruth Bader Ginsburg was caught snoozing at the 2015 State of the Union (although she later quipped that it had only happened because she “was not 100 percent sober”).
I have not fallen asleep at a trial or or a congressional proceeding, but I am also cursed with not being able to fall asleep just anywhere. I, however, am married to someone who does not have the same problem. (Marital privilege prohibits me from disclosing whether she once fell asleep on a Zoom call with the camera off.)
In practice, there is little consequence to Trump for nodding off for a few moments during jury selection. If something of note had come up, any one of his highly-skilled attorneys would surely have been able to regain his attention if the need arose.
Not everyone is so lucky when those around them fall asleep in court. A judge’s sleeping through trial is not sufficient to have a conviction tossed out. The same can be said for sleeping jurors. While the Sixth Amendment to the Constitution guarantees us all the right to competent legal counsel, it’s not necessarily required that one’s lawyer even be awake during legal proceedings.
Defendants throughout history have gone to jail, and even been sentenced to die, despite their lawyers having slept through their trials. Still, one can almost excuse a judge or juror for succumbing to accidental sleep under the conditions. A defendant whose liberty is on the line would be well advised to find out a way to stay awake. (Some judges might frown upon a defendant chewing gum in court, but sleep specialists have identified plenty of other ways to stay awake, some of them courthouse-friendly.)
All of this exposes an enormous problem for Trump. The images of him in court are a stark visual reminder that, like it or not, he is a defendant like any other. Though presumed innocent, he is subject to the protections — and strictures — of the legal system and stands a real chance of ending up behind bars if he is convicted.
The Sixth Amendment requires that he remain in the courtroom for the duration of his criminal proceedings. The rule is for his own protection; the Constitution requires that he be able to “confront” the prosecution. No courthouse press conference, campaign speech or indignant online tirade can change the requirement the Constitution foists on him as an accused. That will mean a lot of time trapped in the obscurity of a windowless, under-ventilated courtroom.
A man of Trump’s age needs somewhere between seven and nine hours of sleep an evening. Given that the judge has called parties to court every morning at 9:30 and the former President has been known to take to social media in the wee hours of the morning, he’s going to need to catch up on those hours somehow. It’s his choice only as to where to do so.
Editor’s Note: This piece has been updated to note that a full jury has been seated.