Manhattan district attorney Alvin Bragg stunned observers this afternoon by seeking a 30-day postponement of the criminal trial against former president Donald Trump. The trial is currently scheduled to start a week from Monday — i.e., March 25.
Bragg’s assistant prosecutors advised Judge Juan Merchan and the Trump defense team that the postponement is necessary to enable defense lawyers to review a batch of previously undisclosed records. The prosecutors claim that the documents were in the possession of the Justice Department and were only just provided to the Manhattan DA’s office.
There is as yet no signal of how Judge Merchan has reacted to Bragg’s delay request, let alone how he will rule on it.
The delay sought is yet another indication of the strangeness of Bragg’s case against Trump, and its fundamental unfairness.
As I’ve outlined (see, e.g., here), Bragg has taken a potential misdemeanor falsification of business records — a single transaction that harmed no one and is, as Dan McLaughlin has quipped, essentially a matter of Trump lying to his checkbook — and metastasized it into 34 felony counts.
Quite apart from the abusive stacking of charges is the statute-of-limitations issue.
The misdemeanor offense involves the booking of reimbursement payments that Trump, while he was president in 2017, made to his former lawyer, Michael Cohen. The payments were reimbursement of a debt, specifically, $130,000 that Cohen had laid out in October 2016 for a nondisclosure agreement — pejoratively described as “hush money,” but entirely legal — in which porn star Stephanie Clifford (a.k.a. “Stormy Daniels”) was paid to maintain her silence about a sexual affair she credibly alleges to have had with Trump circa 2006. Trump booked the reimbursement of the 2016 Cohen debt as if it were payment for ongoing legal services in 2017.
In New York, the statute of limitations for a business-records-falsification misdemeanor is two years. That is, if the case were properly regarded as a misdemeanor, the time to prosecute would have lapsed in 2019. The misdemeanor can be exacerbated into a felony (with a potential four-year prison term) if prosecutors can prove beyond a reasonable doubt that the falsification was done to commit another crime.
Bragg implausibly claims that Trump was concealing a campaign-finance crime, which he committed to avoid the affair’s coming to light before the election. This, notwithstanding that (a) nondisclosure payment was not a campaign expense; (b) Bragg is a state prosecutor who does not have jurisdiction to prosecute federal campaign-finance offenses; (c) the federal agencies that do have jurisdiction did not seek to prosecute Trump; (d) Trump (who denies the affair) would claim that payments were concealed to avoid embarrassing his wife and family, not to cover up what he says is a noncrime; and (e) even if disclosure had been required by federal law, the reporting period would have been in 2017 — i.e., it would have had no impact on the 2016 election.
In any event, the dubiously charged felony offense has a statute of limitations of five years. That is, it should have lapsed in 2022 – a year before Bragg indicted. Nevertheless, during Covid, New York tacked a year onto statute-of-limitations provisions because courts could not process cases. Bragg argues that this extension brings his case into the limitations period.
Statutes of limitations are a staple of the criminal law. They effectuate, for example, the Sixth Amendment guarantee of a “speedy trial.” In essence, a defendant is entitled to prepare a defense to the charges, including to call witnesses and present evidence. That right is undermined if the government delays charges so long that evidence is lost and witnesses become unavailable or their memories fade.
Obviously, then, the longer a prosecutor delays in charging a case, the higher the prosecutor’s obligation to ensure that all of the discovery it must provide to the defense is promptly disclosed.
Before Bragg’s predecessor, Cyrus Vance Jr., began the state’s Trump probe, the matter was originally investigated by the United States attorney’s office for the Southern District of New York. The SDNY looked hard at the hush-money caper and opted not to charge Trump. The FEC did not charge him. Vance did not charge him. And Bragg himself decided there was no worthy case — prompting something of a mutiny among his subordinates, although they were interested not in the Stormy Daniels saga but rather the business-fraud case that Attorney General Letitia James ended up bringing civilly.
Only after his fellow elected progressive Democrat, James, was lauded by progressive Democrats for suing Trump civilly did progressive prosecutor Bragg abandon his prior (and characteristic) preference to decline prosecution. The Stormy case is absurd, but it enabled him to make history as the first prosecutor in American history to indict a former president.
Plainly, however, Bragg did not have his ducks in a row. Even though the pertinent events occurred seven to eight years ago, and even though the SDNY’s investigation was closed nearly six years ago, Bragg waited until the very last minute of an extraordinarily extended statute-of-limitations time frame to bring felony charges (with the misdemeanor limitations period having lapsed years earlier). And although he indicted the case (barely) under the wire, he did not make sufficient efforts to acquire relevant evidence that was in the SDNY’s possession.
As Bragg’s court submission concedes, Trump’s defense team issued a trial subpoena to the SDNY for materials in connection with its prosecution of Michael Cohen. On March 4, just three weeks before the scheduled trial, the SDNY produced 73,000 pages of records. Justifiably believing that most, if not all, of these records should long ago have been acquired by the district attorney’s office and produced to Trump in discovery, the Trump team moved for dismissal of the case or, in the alternative, a delay of 90 days so it could peruse the materials and pursue any leads.
Judge Merchan planned to hold a hearing on Trump’s motion tomorrow (Friday). The DA’s office represents that it planned to acknowledge that a small percentage of the 73,000 pages were relevant to the case (“approximately 172 pages of witness statements”) but that the rest of the SDNY production is “largely irrelevant.” Nevertheless, on Wednesday afternoon the SDNY produced an additional 31,000 pages of records (to both the DA’s office and Trump’s defense). Bragg concedes not only that this new production appears “to contain materials related to the subject matter of this case,” but that the SDNY has stated that still another production of documents is forthcoming, probably next week.
Remarkably, Bragg is blaming Trump’s defense team for the discovery delay. The DA’s office says that after Trump initially subpoenaed the federal government, he consented to several delays sought by the SDNY. But it was Bragg’s obligation to require relevant discovery materials from his federal counterparts (with whom the DA’s office has a sometimes competitive but mostly cooperative relationship). Remember: This is a case in which Bragg purports to have authority to enforce federal law; how could he responsibly do that absent close coordination with the federal authorities?
And Bragg knows this: His submission states that the relevant records the SDNY provided this week contain materials that the DA’s office requested more than a year ago. Bragg claims to have been rebuffed – but his concession means he knew there were discoverable materials that he’d failed to obtain and produce to the defense. Are we really supposed to believe that Trump was able to claw documents out of the Biden Justice Department but Bragg was not?
Bragg’s submission does not elaborate on what steps he took after he says the SDNY declined to produce records to him. Did he alert the court or the defense? Did he appeal to Main Justice to address the SDNY’s intransigence? It is unclear.
In any event, it seems inconceivable that the trial could go forward on March 25 if, to this day seven years after the allegations in the indictment, Bragg still has not obtained and produced the relevant discovery.
Judge Merchan has looked very favorably on Bragg’s case, essentially denying all of Trump’s pretrial motions. It is thus highly unlikely that he would grant Trump’s motion to dismiss based on discovery violations. Surely, however, there is going to be a delay. I suspect that, rather than set a new trial date tomorrow, Merchan will set a scheduling conference to occur after the SDNY has produced that next (and presumably final) set of relevant documents. That way, the parties and the court can realistically assess how long it will take to examine the full trove of discovery and conduct whatever investigation it prompts.
This gets us back, inevitably, to the due-process problems I addressed over the weekend. Trump is not dealing with one case strategically brought by Democratic prosecutors with an eye toward enmeshing him in lengthy, high-stakes criminal trials during the 2024 campaign. He has four such cases.
While the parties bicker tomorrow over whether the Manhattan trial should be adjourned for 30 days, 90 days, or more, so they can pore over more than 100,000 new documents, the Biden DOJ special counsel, Jack Smith, is pushing the federal court in Florida to schedule the Mar-a-Lago documents case for trial on July 8 — less than four months away. That case, which would take up to three months to try (if not more), currently has an illusory May 20 trial date; more importantly, it will require extensive evidentiary hearings under the Classified Information Procedures Act, which Trump is entitled to prepare for and attend — they are critical because Smith has charged dozens of Espionage Act counts.
Meantime, after the Supreme Court decides (and likely rejects) Trump’s immunity claim, perhaps in May but probably June (i.e., 60 to 90 days from now), extensive pretrial proceedings would start up again in Smith’s federal 2020 election-interference case in Washington, D.C. Smith has signaled that he’d push for accelerated pretrial hearings (how that will be done amid the Florida case and Bragg’s case is unclear), so that he could get the case to a trial (which could also take three months) by sometime in September, and run it straight through Election Day.
And lest we forget, even though there is no trial date as yet for the circus that is Fulton County district attorney Fani Willis’s RICO case against Trump and 18 others in Georgia, pretrial litigation is in full swing — indeed, the judge in the case threw out six charges earlier this week.
When is Trump supposed to prepare for these trials? How is he being given a meaningful opportunity to participate in and present his defense? How is this anyone’s idea of due process? And I’d ask those questions even if prosecutors were fully complying with their discovery obligations. With every other case he’s got going on, how is Trump supposed to cope with a document dump of over 100,000 pages on what was supposed to be the eve of trial?
By the way, under New York’s criminal-friendly bail “reforms” in recent years, prosecutors are supposed to make full discovery to defendants — even in violent-crime cases — within 15 days of arraignment on an indictment. If they fail to comply with this deadline, the case can be dismissed. How is it, then, that when the defendant is Trump, it is somehow tolerable that he is still getting discovery nearly a year after being arraigned on alleged crimes that happened seven years ago and that, if they had been reasonably regarded as a single misdemeanor, would never have been charged because the statute of limitations expired almost five years ago?
To repeat, in Trump lawfare, anything goes. When it’s about politics, not law enforcement, say goodbye to due process.