What would you be doing next March if you were a candidate for the Republican 2024 presidential nomination? Since that date is smack in the middle of campaign season, it seems like a dumb question. You’d be campaigning. Look at the schedule: March 5 is Super Tuesday with 14 GOP primaries. Another seven states hold primaries or caucuses on March 12. Five others — critical Florida and Ohio included — go the next week, on March 19.
Donald Trump, however, will have to be campaigning while preparing for trial, at least if the schedule announced in Manhattan today by acting Supreme Court justice Juan Merchan holds.
(New York being New York, the Supreme Court is not supreme — it is the lower trial court. In it, the judges are called justices. Merchan is not a full-fledged Supreme Court justice. Justices are elected to 14-year terms. The unelected Merchan is an “acting” justice, having been appointed to hear criminal cases in 2009 by the state’s chief administrative judge.)
Merchan set March 25, 2024, as the date on which Trump’s trial on business-records fraud charges will commence with jury selection. This trial, we’ll recall, stems mainly from hush-money payments to a porn star. Though no one was defrauded, elected progressive Democrat Alvin Bragg, the Manhattan district attorney, has preposterously charged 34 counts of business-records fraud — a New York misdemeanor subject to a two-year statute of limitations that has long lapsed, but that Bragg is straining to inflate into a felony (with an arguably live five-year statute of limitations) by claiming that Trump falsified his records in order to conceal a mystery crime. (Bragg still won’t tell the defense and the public what that crime is, although as Brother McLaughlin explains, he has supplemented the uninformative indictment with a bill of particulars that is nearly as uninformative.)
Some other news out of today’s hearing.
First, Merchan has ordered Trump, on pain of contempt, not to speak publicly about, or leak to the media, discovery in the case — at least while it is nonpublic (i.e., while it hasn’t been made part of the public record through court pleadings and hearings). Trump claims this is a violation of his First Amendment rights and a profound interference in the federal electoral campaign. Since discovery is nonpublic information, compulsory access to it — though required by due-process rules — is privileged. It is not unusual for courts to limit litigants’ public commentary about it as a condition of access. But as I’ve previously explained, in this instance, where the charges against Trump are clearly a campaign issue, muffling a major candidate raises First Amendment issues that are serious, unprecedented, and certain to recur as Trump navigates a plethora of lawsuits and pending investigations while seeking the presidency backed by an $80 million war chest.
Second, given Bragg’s aversion to enforcing the law against hardened criminals who commit serious offenses, the investment of effort that he has poured into the investigation and prosecution of Trump, on an unabashedly political and patently silly case, is astonishing. There has been controversy, for example, over whether Trump should be able to have access, without notice to the DA’s office, to evidence of forensic imaging that Bragg had done on the cellphones of such witnesses as Stormy Daniels and Michael Cohen. The documentary discovery is said to run into the thousands of pages. Egad.
Third, while I don’t think much, legal-merits-wise, of Trump’s pending bid to get the case removed to federal court, there is little doubt that Judge Merchan’s decision to schedule the trial at a critical point in the federal-election campaign will get the federal court’s attention. Trump’s motion has been assigned to Judge Alvin Hellerstein of the Southern District of New York, and a hearing is scheduled for about a month from now — on June 27.
A criminal trial in the middle of campaign season sounds terrible for Trump. On the other hand, given that other Republican candidates will be asked about Trump’s woes nonstop, and many Republican voters are understandably angry that Democrats are leveraging the justice system against Trump (which of course is why Democrats, who want to run against Trump, are doing it), it will continue to be tough for those other candidates to get traction for themselves. That may sound like it’s good for Trump . . . but it’s terrible for the country.