A New York judge granted a three-week delay but is so far keeping a tight leash on scheduling lest the ‘hush money’ prosecution brought by DA Alvin Bragg be derailed.
On Thursday, we published my post about the delay in former President Donald Trump’s seemingly imminent New York City criminal trial. Jury selection had been scheduled to begin on March 25 (a week from Monday). On Friday, Judge Juan Merchan clarified that the trial is off until Monday, April 15, at the earliest.
That is a tighter leash than it first appeared to be.
After being inundated with over 100,000 pages of discovery virtually on the eve of trial, with another tranche yet to come, Trump sought dismissal of the indictment, arguing that his fair-trial rights had been violated.
On that score, I have contended that Trump has a good argument that his rights are being violated by the way Democratic Party-affiliated prosecutors have not only selectively prosecuted him in not one but four cases, but also strategically indicted those cases. They’ve done so in a way that (a) jams multi-week (and some multi-month) trials into the 2024 election calendar, hampering the putative Republican presidential nominee’s ability to campaign, and (b) more significantly for due-process purposes, orchestrates proceedings in these complex cases in four different jurisdictions, geographically distant from one another, making it impracticable for Trump to prepare his defenses (at least if the courts indulge the Democratic partisan imperative that Trump be tried prior to Election Day, even though there is no law-enforcement or judicial rationale for that time pressure).
At a minimum, Trump’s lawyers asked that the Manhattan trial be postponed for 90 days. Were Judge Merchan to grant such a continuance, the matter could be delayed even longer because it’s conceivable (though not probable) that one of Trump’s other pending criminal trials could be scheduled in the interim. I am thinking specifically of the two federal prosecutions brought by Biden Justice Department special counsel Jack Smith; the Georgia prosecution brought by Fulton County district attorney Fani Willis (an elected Democrat), is mired in controversy, has never had a trial date scheduled, and appears to be behind Smith’s two cases in the queue, making a pre-Election Day trial in Atlanta highly unlikely.
The two federal prosecutions are currently delayed — the Washington, D.C., election-interference case due to anticipated Supreme Court rulings on immunity and obstruction issues; and the Florida case, involving Trump’s retention of national-defense intelligence, due to the complexities of classified documents litigation (and myriad other pretrial motions). Nevertheless, if the New York trial were delayed for three or more months, that might open up the calendar for one of the coming federal trials — or at least for extensive preliminary proceedings in those cases that must be completed before the trials can start.
Judge Merchan understands this and, at least for now, is trying to preserve an early spring commencement of the New York trial.
The New York case, brought by Manhattan district attorney Alvin Bragg (an elected Democrat), arises out of Trump’s alleged falsification of business records stemming from the payment for a non-disclosure agreement to porn star Stephanie Clifford (a/k/a “Stormy Daniels”) — to prevent her from going public prior to the 2016 election about an affair she claims to have had with Trump a decade earlier.
Seven years ago, the United States attorney’s office in Manhattan (the Southern District of New York) investigated but opted not to prosecute Trump on campaign-finance violations. The SDNY did, however, prosecute Michael Cohen, Trump’s then-lawyer who paid the $130,000 in hush money to Clifford. That was a small part of a much bigger case of financial fraud against Cohen, in which Trump was not implicated.
The torrents of late discovery in the Manhattan case come from the SDNY. Knowing there is potential help for him in the SDNY’s files — since the feds did not prosecute him but did prosecute Cohen, a pivotal witness for Bragg — Trump’s team agitated for the documents, including subpoenaing them from the SDNY when it failed to get satisfaction from the DA’s office. Bragg, for reasons not yet clear, failed to obtain the documents from the SDNY — though it is clear that he knew the feds possessed relevant information that should have been disclosed to the defense.
It initially appeared that Bragg was proposing a 30-day delay as a counter to Trump’s 90-day postponement proposal. Contrary to initial reports, Judge Merchan did not put the trial off for 30 days. He tentatively granted a three-week delay, to April 15. But now, instead of starting trial on the long-scheduled March 25 date, Merchan will hold a hearing to explore the reasons for the bafflingly tardy disclosure of relevant information regarding a transaction that occurred eight years ago, that was federally investigated seven years ago, that the Manhattan DA’s office appeared to abandon three years ago, and that Bragg finally indicted nearly a year ago. Depending on what happens at the hearing, Merchan could delay the trial beyond April 15.
Under New York’s recent bail-reform laws, prosecutors are supposed to turn all discovery over to the defense within 15 days of arraignment. Trump was arraigned on Bragg’s 34-count indictment in April 2023.
As an SDNY prosecutor for many years, I’ve been involved in my share of turf battles with the Manhattan DA’s office. I suspect that my old office has not bent over backwards to help the state because Bragg is audaciously purporting to enforce federal campaign-finance law, which he has no jurisdiction to do, after the SDNY — which does have jurisdiction and more expertise in the subject matter — looked carefully at it and decided (correctly in my view) that there was no prosecutable case against Trump.
We’re not talking here about the morality of trysts with porn stars but, rather, the legal complexities of (a) what qualifies as a campaign expenditure; (b) the fact that candidates, such as Trump, have laxer spending restrictions than supporters, such as Cohen; and (c) the fact that the non-disclosure agreement — notwithstanding Bragg’s untenable theory — can have had no bearing on the 2016 election outcome because, even if the hush money were deemed a campaign expenditure (which it wasn’t), it would not have to have been disclosed until 2017.
In any event, neither the SDNY (including under the Biden Justice Department) nor the Federal Election Commission concluded that Trump should be prosecuted. I am sure the SDNY does not appreciate Bragg’s implicit position that he has courageously charged the case the feds shrank from bringing. Objectively, Bragg’s case is absurd — though that hardly means he won’t manage to get Trump convicted by a Manhattan jury with a friendly judge presiding.
Even though New York law is designed to deal harshly with prosecutors who fail to comply with the state’s criminal-friendly discovery strictures, Merchan has so far been a reliable rubber stamp for Bragg in the Trump case, and I don’t expect that will change. Politico reports that, notwithstanding the delay until April 15, Merchan on Friday repeated his admonition that the lawyers for both parties, as well as Trump himself, refrain from entering into “any commitment pending completion of this trial.”
That strongly suggests that Merchan will deny Trump a delay that extends much (if at all) beyond April 15. Clearly, the judge is reluctant to grant a continuance that would allow one of the other Trump prosecutions to derail the Manhattan case.