The judge presiding over Donald Trump’s criminal case said he intends to move swiftly, but between the slow-moving New York court system and Trump’s tendency to push for delays in legal matters, analysts expect the case to linger and collide with the 2024 presidential campaign.
It will be many months before the former president, who is running for office again, is due back in court to face 34 counts of falsifying business records in the indictment unsealed this week.
Trump’s lawyers have until August to file challenges to the case accusing him of hiding a payment to an adult-film actress before the 2016 presidential election to keep her quiet about a sexual relationship she says she had with Trump years earlier. Those filings may coincide with the first Republican debate of the primary season, which is also scheduled for August.
One of Trump’s lawyers, Joe Tacopina, said Wednesday that he did not expect any significant developments before July.
“It’s going to be a long time before anything happens,” Tacopina said in an interview. “We’re going to be methodical.”
Trump, who pleaded not guilty to the charges, is likely to call in to town hall meetings on Thursday to rally supporters and travel next week to speak to the GOP’s top donors in Nashville and then to the National Rifle Association’s annual convention in Indianapolis, according to Trump advisers.
Trump watched Manhattan District Attorney Alvin Bragg’s post-arraignment news conference on the plane ride back to his home in Florida and complained about the prosecutor. He is likely to continue attacking Bragg and New York Supreme Court Justice Juan Merchan, although some in his orbit wish he would stop the attacks – particularly at the judge – according to the advisers, who spoke on the condition of anonymity to share private discussions.
[‘Frustrated and upset,’ Trump goes silent, then seethes]
On Tuesday, prosecutors floated a trial date in January, right before the first-in-the-nation Iowa caucuses on Feb. 5. But Trump’s legal team suggested a spring 2024 date would be more “realistic,” which the judge sounded open to.
Prosecutor Christopher Conroy provided a schedule for handing over to the defense discovery documents such as grand jury witness testimony and noted the urgency of the matter.
“We understand there is an intense public interest in moving this case along as expeditiously as possible,” Conroy said.
By next spring, the Trump campaign could be dug in for a long delegate fight or, if the early states go its way, have already sewn up the nomination. Either scenario could provide a reason for the Trump legal team to seek further delay.
Trump’s lawyers can be expected to “take every tactic to delay the trial. This has been the Trump legal modus operandi in virtually every case,” Neal Katyal, a former acting solicitor general who has closely tracked litigation involving the former president, said in an email. “Here, delay allows him to fundraise off the indictment without having to face the day of reckoning in the legal system.”
Trump on Wednesday posted a message on Truth Social in which he said his campaign had raised $10 million since the indictment was announced last week.
Katyal said that Trump’s typical delay tactics may not succeed in this case and that he may simultaneously confront other legal troubles with ongoing investigations in Washington and Georgia into his handling of classified material at his residence and club, Mar-a-Lago, and his efforts to overturn Joe Biden’s 2020 election.
Also Wednesday, former vice president Mike Pence decided not to appeal a judge’s ruling that requires him to testify before a grand jury as part of the special counsel’s investigation into the Jan. 6, 2021, attack on the U.S. Capitol.
Trump’s team expects there will be movement on the other investigations by the summer – investigations they have feared more than the New York one. Trump has been angered and annoyed, according to the advisers, by reports he’s received about his lawyers and close aides testifying due to court orders as part of special counsel Jack Smith’s investigation into the potential mishandling of hundreds of classified national security papers.
In New York, Bragg charged Trump with falsifying business records to cover up the former president’s repayments in 2017 to Michael Cohen, his former lawyer. Cohen paid $130,000 to keep actress Stormy Daniels from going public about her allegations that she had an affair with Trump, which he denies.
Prosecutors say the checks, vouchers and invoices related to Trump’s reimbursement of Cohen – kept by the Trump Organization – were intentionally mischaracterized as payments for legal services.
Legal experts said the way Bragg has structured the case could lead to further delay. Some criticized Bragg for failing to clearly articulate in the indictment and statement of facts the specific underlying crimes he believes Trump intended to commit that would elevate the charges of business record falsification – ordinarily misdemeanors – into felonies.
[Analysis: Trump charged with narrow violations, in pursuit of broad scheme to undermine 2016 vote]
Bragg told reporters at the Tuesday afternoon news conference that the underlying crimes amounted to violations of state and federal election laws, in addition to false tax claims. Bragg said the repayments to Cohen were mischaracterized as income, instead of a reimbursement, to state taxing authorities.
“What the DA has produced so far is slim,” said Richard Hasen, a UCLA law professor and election law expert, who was surprised that the indictment did not include a legal memo pointing to specific underlying statutes even if that step was not required under New York’s rules.
“Given the attention everyone knew this case was going to garner, I was surprised,” he said. “It was quite vague. I take that as a sign of weakness, not strength.”
Analysts said Bragg’s approach could be problematic because courts have held that state laws are preempted by federal statutes. For that reason, state prosecutors may be barred from prosecuting federal candidates for federal crimes. At the same time, it is not clear that Trump, as a federal candidate, can be liable for state campaign finance crimes.
Other legal experts predicted judges will be persuaded by Bragg’s arguments that Trump falsified business records to hide an intent to violate state and federal campaign finance laws.
Karen Friedman Agnifilo, a former Manhattan chief assistant district attorney, and Norman Eisen, a senior fellow at the Brookings Institution who served as counsel for House Democrats during Trump’s first impeachment, argued in a New York Times op-ed that there is “nothing novel or weak” about the case. They noted that other officials have been charged with falsifying business records to hide campaign violations, though each of the cases they cited involved state and not federal officials.
They also cited some cases in which some state election laws have been applied to federal cases. “He is being treated as any other New Yorker would be with similar evidence against him,” they argued.
Jerry H. Goldfeder, director of the Fordham University School of Law’s voting rights and democracy project, said that as a presidential candidate Trump still needed to follow New York’s election laws. Bragg, he said, was not required to charge Trump separately on any election-related offenses to make his case that Trump intended to thwart election laws by falsifying business records.
“It’s a valid case. It’s unusual, but it’s perfectly appropriate to allege such violations,” Goldfeder said. “The district attorney has to prove the case beyond a reasonable doubt, and it will be up to 12 New Yorkers to decide if he did it.”
It is possible that Bragg’s team will have to disclose more specific charging theories in advance of a trial or prior to Trump’s team filing its motions. The former president’s lawyers are likely to challenge the sufficiency of the indictment itself as grounds to dismiss the case. These issues could get a full airing in court before there would be a trial.
Should Trump’s case proceed to trial a year from now, as suggested by the former president’s attorneys, it would still be considered fast-tracked compared with other cases in Manhattan’s state court. It is not uncommon for felony matters to drag on for years, with delays over competing motions or disputes over discovery and other issues. Trial dates are routinely changed because of witness availability, holidays and other hurdles.
Trump also has a long history of deliberate delay through the court system. He has worked to exhaust his opponents in court and the public in the hope that cases against him weaken with time.
As president, he fought to block lawmakers from accessing his tax returns and impede their attempts to interview his former White House counsel about Trump’s attempt to undercut special counsel Robert S. Mueller III’s investigation into Russia’s election interference. He effectively ran out the clock in both cases, even though Congress eventually obtained some of what it wanted.
In this case, Jed Shugerman, a Fordham Law School professor, said Bragg has essentially invited Trump’s lawyers to try to get a federal judge to intervene and rule on issues related to the alleged election law violations, a process that could go all the way to the U.S. Supreme Court and extend the case by a year or more. He said it was “hard to imagine a scenario” where the case would be tried before the 2024 election, should Trump ask a federal court to intervene.
Shugerman said that while ordinarily Trump’s delays work to “game the system,” in this case, Trump has reasonable grounds to move slowly, as he waits for Bragg’s office to provide discovery and a fuller explanation of the case.
“He can use this to his advantage,” Shugerman said.
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The Washington Post’s Perry Stein, Shayna Jacobs, Isaac Arnsdorf and Timothy Bella contributed to this report.