When Donald Trump returns to Manhattan state court on Monday in his hush-money criminal case, it will not be for the highly anticipated trial involving the adult film star Stormy Daniels that was originally scheduled for that morning.
The case was meant to be the first criminal trial for the former US president, playing out against the backdrop of his attempt to return to the White House.
But instead – like the other three cases he faces – the hush-money trial is becoming increasingly mired in delays. It is also facing doubts raised over the previous reliability of a key witness for the prosecution.
Trump’s legal team and the office of the district attorney, Alvin Bragg, will spar over the turning over to the defense of more than 100,000 pages of documents just weeks before the trial’s scheduled start date.
Trump’s lawyers have asked Judge Juan Merchan to delay the case at least 90 days, or throw it out altogether, over what they have described as “violations” in the discovery process – in effect, they claim that Manhattan state prosecutors did not follow legal requirements to share evidence with them in a timely manner.
The materials related to the feds’ investigation of Michael Cohen, Trump’s former fixer-turned-prosecution witness.
Several federal prosecutors’ offices possessed the recently disclosed documents, not Bragg.
Trump is accused of diverting hundreds of thousands of dollars to Cohen in an attempt to conceal stories about marital infidelity, and then describing the expenses as legal costs in business documents. Trump was charged with 34 counts of falsifying business records, a class-E felony, in April.
Prosecutors contend that Cohen paid $130,000 to Daniels and plotted with the publisher of the National Enquirer to hand the former Playboy model Karen McDougal $150,000, to kill their accounts of liaisons with Trump, which he denies. Trump’s eponymous company allegedly repaid Cohen $420,000.
Potentially complicating Cohen’s role in the case is a federal judge’s suggestion last week that he may have committed perjury under oath.
“The People have engaged in widespread misconduct as part of a desperate effort to improve their position at the potential trial on the false and unsupported charges in the Indictment,” Trump’s lawyers claimed in court filings. They claim that these documents, which were generated during Manhattan federal prosecutors’ investigation of hush-money payments, included “reports relating to statements by Cohen that are exculpatory and favorable to the defense”.
The prosecution, which had agreed to a 30-day postponement so that Trump has the time to review these documents, has contended that extended delay or dismissal is not warranted. They insist they had complied with discovery law, found that the small amount of relevant documents were “inculpatory” and that Trump’s team was to blame.
They noted that Trump’s lawyers waited until January to request additional Cohen-related documents from federal prosecutors, saying “the belated nature of the recent USAO productions is entirely a result of defendant’s own inexplicable and strategic delay in identifying perceived deficiencies …”
Both sides’ arguments before Merchan might shed light on who is to blame – if any blame is warranted – and if so, what should happen next.
Criminal defence attorneys, however, tell the Guardian that Trump’s chances for dismissal are slim-to-none and that the likeliest outcome would be his securing another delay – though that in itself could be seen as a win by Trump’s team.
“The feds’ sudden turnaround has provided the Trump team with an opportunity to complain that they didn’t get this useless pile of stuff sooner and to argue, once again, for more time – which is not unique to Trump,” the longtime criminal defense attorney Ron Kuby explained. “Every good defense lawyer who has a client who is out on bail does not want a speedy trial.”
Kevin Faga, a longtime defense attorney, voiced similar sentiments while speaking generally about discovery laws.
“I don’t think a judge, for example, would say the district attorney is required to contact every law enforcement agency in the country to find out if they have ongoing investigations and provide all the information gleaned in those investigations.”
James Kousouros, who has practiced law for more than 36 years, said that the recent disclosure was a “problem” but doubted it would lead to an actual dismissal.
“Is it going to play into the delay strategy? Yes and, quite frankly, rightfully,” Kousouros said. “When you turn over tens of thousands of documents weeks before trial, the defense has to be given a reasonable opportunity to review those documents and conduct a thorough investigation.”
Kousouros also felt that a judge, even if inclined to grant a delay in this circumstance, might not place the blame on state prosecutors.
“The judge can turn around to the defendant and say: ‘Listen, you knew that the US attorney for the southern district of New York was investigating [Cohen], so you knew they had a file.”
