Can Melania Trump Be Forced to Testify Against Donald?

As the opening remarks for former President Donald Trump's criminal trial near, there has been heavy speculation about who might be called to the witness stand in Manhattan.

The hush money payment case, in which Trump is facing 34 felony counts of falsifying business records, involves several high-profile figures, including adult film actress Stormy Daniels (real name Stephanie Clifford), former Trump fixer Michael Cohen, and former White House chief strategist Steve Bannon. Trump has pleaded not guilty to all charges.

During the first day of trial, Judge Juan Merchan read the names of possible witnesses, instructing prospective jurors on Monday to advise the court if any of those individuals might affect their ability to be fair and impartial. That list included three of Trump's adult children, Donald Jr., Ivanka and Eric, as well as his wife, former first lady Melania Trump.

Although it's unclear if Melania will be called to testify in her husband's criminal trial, legal experts told Newsweek the prosecution could legally force her to take the stand.

"If Melania is subpoenaed by the prosecution, she would have to testify unless she can assert some sort of privilege," former federal prosecutor Neama Rahmani told Newsweek.

Rahmani said the obvious privilege, in this case, would be a spousal privilege, which is codified into New York law and "protects the confidential communications between spouses during the course of the marriage."

But while it's possible that the government could go after Melania procedurally in an attempt to force her to show up as a trial witness, "the likelihood of that occurring is extremely low to non-existent," former federal prosecutor and elected state attorney Michael McAuliffe told Newsweek.

McAuliffe said that was because Melania has no involvement in the underlying allegations that Trump had an affair with Clifford.

"In fact, she's the putative victim in the illicit sex part of the story," he said.

The case in Manhattan centers on an alleged $130,000 hush money payment that Cohen paid Clifford to keep her alleged affair with Trump a secret in the lead-up to the 2016 election. Prosecutors claim Trump falsified business records by paying Cohen $420,000 as reimbursement for that payment and other expenses but labeling it as a legal fee.

Merchan already ruled Monday that while testimony about Trump's alleged affair with former Playboy model Karen McDougal would be admissible in court, witnesses would not be allowed to discuss whether the alleged affair happened while Melania was pregnant or when she had a newborn. McDougal was allegedly paid off by the National Enquirer with money from Cohen.

But even more important than Melania's lack of involvement in the case are the optics that would surround subpoenaing the former first lady, McAuliffe said.

"Any government attempt to force her to be present as a potential witness would just feed Trump's preferred narrative that the case is about airing salacious rumors instead of holding Trump accountable for crimes," he said.

Other possible witnesses in the case include:

• Jared Kushner, Trump's son-in-law who is married to Ivanka Trump
• Kellyanne Conway, former Trump campaign manager and former senior counselor to the president
• Rudy Giuliani, former Trump attorney
• Hope Hicks, former Trump White House communications director
• Dan Scavino, former Trump campaign social media director and former Trump White House deputy chief of staff for communications
• John McEntee, former Trump White House aide
• Allen Weisselberg, former chief financial officer at the Trump Organization

Trump became the first former president to stand criminal trial on Monday after jury selection kicked off in the Manhattan case. Seven jurors had been chosen as of Tuesday. The process will resume on Thursday as the court tries to find another five jurors and possibly six alternates.