Trump’s Imminent Criminal Trial: April 15 in Manhattan

Early this afternoon, we posted my column about today’s developments in the New York division of the Democrats’ lawfare crusade against former president Donald Trump. Here, I’m posting a few additional thoughts about the criminal prosecution, in which trial is scheduled to commence in three weeks — on April 15.

Late Discovery

After he was predictably rebuffed by Judge Juan Merchan in his effort to have the Manhattan indictment dismissed or the trial postponed for three months, Trump conducted a press conference. In it, he sounded like he still thinks the trial may not happen, at least for a while, indicating that his legal team will appeal. I do not believe a judge’s scheduling of a trial date is appealable pretrial. If Trump can demonstrate that he was rushed to trial, in violation of his due-process rights, after receiving late discovery of over 130,000 documents, he will be able to raise that on appeal post-trial if he is convicted. (Obviously, there is no appeal if a defendant is acquitted.) But in criminal cases, few issues are appealable pretrial, and the scheduling of a trial date is not one of them.

Moreover, as Dan McLaughlin and I have pointed out, one of Trump’s main objections to the case is that Manhattan district attorney Alvin Bragg brought it outside the statute of limitations (see, e.g., here, here, and here). The logic of such a claim, or of the closely related claim that a defendant’s speedy-trial rights have been violated, is that the prosecution’s delay prejudiced the defense’s ability to present a defense (because helpful witnesses are no longer available, evidence has been lost, etc.). Yet, if the defense is saying it needs endless delays — which Trump is doing not out of legal strategy but with the political objective of trying to get the matter postponed beyond Election Day — this undercuts any appellate claim that the defense was harmed by the state’s delay.

I believe Trump has strong statute-of-limitations arguments: If, as I’ve argued, Trump’s offense was at most a misdemeanor falsification of business records, the two-year time to bring such charges lapsed in 2019. To my mind, it’s unwise to undercut a strong appellate claim (statute of limitations) by positing a weak one (the allegedly late disclosure of information that wasn’t in the possession of Bragg’s office and that Trump asked the federal government to provide). An appellate court is not going to reverse a conviction due to a discover violation — not on this record.

Immunity

As we’ve seen in connection with Trump’s federal indictment for alleged 2020 election interference (the so-called January 6 case in Washington, D.C.), claims of immunity from prosecution may be appealed pretrial. Trump has made an eleventh-hour assertion that his immunity claim is relevant to the Manhattan prosecution.

At first blush, that seems odd: Trump’s claim, now before the Supreme Court, is that he is immune from prosecution for official acts as president; although Trump was president at the time of the acts charged by Bragg, they were not official acts (Trump reimbursed his private lawyer at the time, Michael Cohen, for $130,000 that Trump paid to a porn star for a nondisclosure agreement — which is a legal contract — to prevent her from going public about a tryst she credibly alleges they had in 2006). Nevertheless, Trump’s motion claims, based on representations by the state, that Bragg intends to prove at trial that the Trump White House mobilized to discredit Cohen when he turned on Trump after being indicted on unrelated federal fraud charges.

I have no idea if Bragg is planning to do that, but it would be foolish if he wants to get the case to trial in three weeks. Recall that, when Trump was president, he rhetorically attacked the writer E. Jean Carroll when she accused him of sexual assault; when she then sued him for defamation, the Justice Department (in a move that even the Biden Justice Department defended, at least initially) got the case removed to federal court and argued that Trump and, derivatively, the United States were immune from prosecution. Believe it or not, this raised a complex question of law. The ensuing judicial ping-pong delayed the trial of Carroll’s related defamation claim for four years. Even though Carroll eventually prevailed in the trial court, Trump is certain to press the immunity issue again on appeal — and the Second Circuit appellate court has been anything but clear in addressing it thus far.

Given the seriousness of purpose Judge Merchan exhibited today in announcing a firm April 15 trial date, it does not appear that he is inclined to take Trump’s immunity claim very seriously, much less to delay the trial until after the Supreme Court rules on Trump’s immunity claim in the federal prosecution (a decision is expected in May or June). And to the extent that Trump is now belatedly trying to fold the private acts Bragg has actually charged into his new immunity claim, that doesn’t deserve to be taken seriously. On the other hand, if Bragg does intend to offer the Trump White House’s actions or statements about Cohen as evidence of Trump’s guilt, Trump could appeal a denial of immunity by Merchan, or try yet again to get the case transferred to federal court (he was unsuccessful last year). This would delay the trial significantly, so, while unlikely, it bears watching.

Pretrial Publicity

Trump is also seeking to delay the trial on grounds of prejudicial pretrial publicity. Merchan will entertain that claim, but bet the ranch that it will be denied.

A defendant who is stoking publicity about a case, which Trump is incessantly doing, is not going to be taken seriously in complaining about publicity. More to the point, because Trump is a controversial public figure, any criminal prosecution of him would generate publicity no matter when it happened — a delay wouldn’t cure the problem. As courts routinely explain in this situation, the best way to address pretrial publicity is through a searching voir dire of prospective jurors. This ensures, not that they haven’t heard about the case, but that they can be fair and decide the case based only on the evidence presented in court. That is no doubt what Merchan will say, and it’s why jury selection is going to take more time in this case than most — maybe much more time.

My Recent Column about Bragg’s Prosecution of Trump

Two or three times in his remarks today, Trump drew attention to my weekend NR column from this past Saturday. In it, I opined that Bragg’s prosecution is at least as deceptive as the falsification of records he has charged against Trump. That is, under the camouflage of a state violation, Bragg is attempting to enforce federal campaign-finance law, which he has no authority to do — and yet is doing under circumstances in which the federal agencies that do have jurisdiction decided not to take enforcement action against Trump.

A big part of my job around here is to analyze legal cases. Sometimes, the former president praises this commentary; sometimes he portrays me as a knucklehead. I’ve learned not to pay it much mind either way.

I will say, however, that my objections to Bragg’s prosecution, which is truly an awful case, are mainly legal. That means they’re unlikely to be of much relevance in the four corners of imminent jury trial. The jurors are not going to hear about, say, Bragg’s jurisdiction or statute-of-limitations law; they are going to hear about a porn star’s salacious allegations, Trump’s bookkeeping, and the actions and indecorous background of Bragg’s star witness, Michael Cohen.

I do think the jury could be offended (a) that in a city with a serious crime problem, the DA, out of blatant partisanship, is wasting time and money on this nonviolent, victimless, nonsense case, and (b) by Bragg’s carving into 34 felony counts (with statutory prison exposure of more than a century) what is really a single transaction that should, at most, be a misdemeanor — an unsubtle intimation that Trump is an Osama bin Laden–level threat to society. Arguments along the lines of what I’ve written, however, have been posited by Trump’s lawyers. (That has nothing to do with me; these are contentions any competent defense lawyer would make.) Those arguments have gotten nowhere with Judge Merchan.

If Trump gets convicted on one or more of the 34 counts — and the chance of that is significant — some of those legal claims may gain traction on appeal. They won’t help the defense sway a jury.