Trump’s Legal Travails

The former president and his lead lawyer were in Criminal Court in New York City seeking to delay his trial for hush money payments to a porn star. It went badly for Trump and worse for his lawyer. Now set for April 15, Trump must spend four days a week in Court for as many as six weeks. He will be lucky to manage three campaign days a week. No US president has ever faced a criminal trial

By Kenneth Tiven

Trial transcripts involving former US President Donald Trump are a “must read” masterclass for lawyers on how not to defend a client. No US president has ever faced a criminal trial. This will be headlines in American media and hardly a minor item globally. President Joe Biden’s re-election effort will stress his opponent’s legal and moral negatives. Trump already has combined election interference with his 2020 Stop the Steal slogan. Trump gained a $300 million break from a New York State Appeals Court in his efforts against his civil trial conviction for business fraud. That ruling levied a $465 million penalty, requiring upfront payment before Trump could request a full appeal. With little explanation, the Appeals Court reduced the initial bond to $175 million, giving him until April 4 to raise that amount. Should he be convicted, the $465 million penalty still applies. 

Trump’s courtroom demeanour, in general, has been hostile towards the judges, but in the hush money case, Trump’s lawyer Todd Blanche’s conduct outraged Judge Juan M Merchan. Judge Merchan was considering a defense motion to delay the trial because of documents given to the state court prosecution by federal prosecutors. These relate to the 2018 trial of Michael Cohen, the Trump fixer who paid off the porn star and then was reimbursed for “legal fees” by Trump. Cohen is a government witness in this case. Trump’s defense team claimed that under New York law, the state was obligated, but had failed to obtain tens of thousands of federal government documents relevant to Trump’s defense. Judge Merchan, who had handled other trials involving Trump, saw the defense’s ploy to cause a delay for delay’s sake. The judge took attorney Todd Blanche through the arguments and treated Blanche like an errant ten-year-old with an angry father. 

American defense lawyers theoretically understand that misrepresenting procedural issues or withholding information can anger an experienced judge, a poor “modus operandi” when it’s a famous case in an election year involving a political defendant. “{Your} motion accuses the People of engaging in serious discovery violations,” said Merchan looking directly at Blanche. He ran through a laundry list of the defense claims, including that “the People have been far more than passively complacent in the suppression of evidence, a move specifically geared to interfere in the 2024 Presidential Election.” The defense accused the state of engaging in a “strategy to hide the truth and to obstruct defendant’s efforts to obtain evidence.” Facts are critical if you suggest the Court is complicit in an illegal strategy. Could Blanche prove this? For decades, it has been evident that drama and delay are legal strategies often used by Trump’s attorneys, who make wild and baseless claims. 

Judge Merchan is not an amateur like the young Judge Aileen Cannon, a Trump Federal Court appointee in Florida, handling Trump’s classified documents case. Merchan explained that since March 15 when the case was adjourned, he had read through more than 1,00,000 pages of the documents in question. “Like all of you, I wish I had a little more time, but I did review them,” he said. He then asked both parties about the relevance of the documents. The state’s lawyer said: “In the neighbourhood of 300 or fewer records.”  “We very much disagree,” said Blanche, Trump looked startled at this. Merchan asked Blanche, how many? “Thousands and thousands,” Blanche responded and then began referencing bank records and FBI witness interviews related to the Mueller investigation. Merchan said the Mueller investigation has nothing to do with the case and is irrelevant. Blanche responded that there are “4,000 emails”. When the judge asked what they are about, he got this reply, worthy of an instant replay: “We haven’t gone through them yet,” Blanche admitted.

That gotcha moment was crystal clear: Blanche wants the case and documents dismissed for prosecutorial misconduct, but has not read them!

Merchan, with his substantial eyebrows raised, leaned forward to remind Blanche that his claim the documents were relevant was a grave allegation of discovery misconduct, especially if defense counsel was telling the Court he hadn’t even reviewed the emails?!

Judge Merchan asked again, how many relevant documents. Blanche responded, “thousands”. An annoyed Judge Merchan asked: “Two thousand? Twenty thousand?” Blanche responded with “tens of thousands”—Blanche didn’t know. 

Matthew Colangelo, a lawyer in the District Attorney’s office was quite specific that 81,259 were bank records and irrelevant, but two were unique and relevant. Colangelo backed up his claim of “less than 300” with precision. Colangelo explained that some were all publicly available materials that the state had no obligation to turn over on its own. “Lawfare” provides legal transcripts with descriptions: “Blanche, his face matching his name, said nothing in response”.

Merchant: “You don’t have a single cite to support that position.” The relevance question went as badly as possible for the defense, but the day got worse.

Trump’s defense counsel had argued that the state had violated its obligations under New York Criminal Procedure Section 245.20. which defines the relationship of state agencies in discovery matters. The defense maintained that by not obtaining the documents from the FBI and the office of the US Attorney, the state had violated this section. How is it, Merchan asked, that the FBI and the US Attorney’s office, which are federal agencies, fall under this state statute? With some prodding, Blanche admitted he has no case that supports the proposition that the FBI or the US Attorney’s office is under the control of the state for purposes of the discovery obligations under Section 245.20.

Judge: “Can you give me a single case—one case—that stands for the proposition that the U.S. Attorney’s Office is under the prosecution’s discretion or control?” 

Blanche: “I don’t have a case that says that exactly.”

Now, his voice rising, Merchan lectured the lawyer: “You’re literally accusing the Manhattan district attorney’s office and the people assigned to this case of engaging in prosecutorial misconduct and of trying to make me complicit in it and you don’t have a single cite to support that position.” 

Even Trump shifted in his seat, recognizing that his lawyer had lost a judicial match. But Merchan wasn’t finished embarrassing Blanche. He drove one final nail in Blanche’s coffin. If the state had made its first production of documents in the summer of 2023, then Blanche long knew or suspected that there were documents the defense had not received. And yet he sat on his motion and sprang it last minute. The exchange, reported by Lawfare, was remarkable, because it either showed Blanche was incompetent or that he was intentionally trying to delay the case.

Judge asking, “You’re a former assistant US Attorney, right?”

Blanche: “Yes”.

Judge: “In that office? (referring to the Southern District of New York. )”

Blanche: “Yes.”

Judge: “How many years?”

Blanche: “Four years as a paralegal, and nine as a prosecutor.” 

The visibly angry Judge said: “So, you were there for 13 years. So, you know that the defense… has the same ability as the prosecution to obtain these documents. So, when you received the people’s first production …you could have very easily done exactly what you did in January, but for whatever reason you waited until two months before trial.

Merchan zeroed in on the fact that defense counsel had asked back in February for the trial to be delayed, but Blanche didn’t bring up the allegedly missing documents then, even though he was aware of them.

Judge: “Why didn’t you bring any of this to my attention? Why didn’t you tell the Court or anyone in the courtroom at that time that you had made this request, that it was taking a little longer than you expected?” Journalists in the courtroom said Blanche looked frazzled. 

Burning credibility in search of a delay is rarely productive. Legal analyst Norm Eisen points out that Merchan now will look skeptically at every motion, and every assertion, and question whether there is any evidentiary basis for it. When you show the judge that you are unserious, make wild accusations without basis, and appear willing to play games to cause delay and chaos, the judge will put you on a tight leash. 

Judge Merchan used words like “disconcerting” and “misleading” to describe what the defense had attempted. While he is considered a “very mild-mannered judge,” he was “visibly angry”. Blanche has lost much of his credibility and the judge created a solid record that will also read poorly on any appeal. 

With a client like Trump, that may be obvious. Judge Merchan previously presided over the Trump Organization criminal tax fraud case that ended with the conviction of the Trump company. This defense approach seems an inauspicious start to a relationship with the judge who will preside over the case and sentence Trump if he is found guilty. 

Richard Nixon was the only US president to admit guilt in anything. In his case, he resigned in a plea deal to avoid prosecution in 1974 for his efforts to damage his opponent’s campaign two years earlier. 

—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels

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