Trump’s attorneys have signalled that they will seek to file motions to the court to dismiss the case outright. These motions, usually filed within 45 days of an arraignment in New York criminal courts, will probably challenge the legal sufficiency of the indictment.
One issue, for instance, could be whether the misdemeanour of falsifying business records can be married with a federal campaign finance law to elevate it to a felony, which was the basis for all 34 charges unsealed on Tuesday.
They may also challenge whether the charges were brought within the statute of limitations, which is normally two years in New York for the offences in question. Prosecutors are expected to argue the statute was paused when Trump left the state to live in Washington and then Florida.
“When it is the former president of the United States and there is so much at stake here, he should have the opportunity to certainly fully vet this case from top to bottom,” said Jeremy Saland, a New York criminal defence lawyer and former assistant district attorney in Manhattan.
Trump’s defence team may also file a rarer “Clayton motion”, which asks the court to dismiss the case not on its merits, but in the “interest of justice”. The judge would then decide on matters such as whether proceeding with the case would undermine public confidence in the criminal justice system.
“When I was a county court judge, I encountered it a handful of times,” said Thomas Franczyk, a New York judge for 20 years who retired in 2017, but “in this case you can probably expect it”.
A Clayton motion would “call into question the motivation” of the district attorney’s office in bringing this case, Franczyk said, adding that the fact that it could have been brought for years had “given the defence ammunition to raise the argument — ‘why so long’ “.
Manhattan prosecutors will then be given some time to respond to such motions. The schedule is entirely at the discretion of the assigned judge, Juan Merchan.
Motions to suppress evidence
Susan Necheles and the rest of Trump’s defence team may also ask the judge to review the minutes from the grand jury, which heard testimony from witnesses including former Trump lawyer Michael Cohen and porn actress Stormy Daniels before voting to indict the former president last week.
They may then use a tactic Trump’s lawyers have already deployed in Georgia, and ask the judge to preclude evidence shown to the grand jury on the grounds that the process was unlawful or unconstitutional. They may claim, for example, that legally inadmissible evidence of previous bad acts by Trump was presented.
The legal team will receive a large amount of “discovery” — the evidence gathered by prosecutors in the run-up to the grand jury’s vote, and any extra material uncovered since.
Trump’s defence attorneys could then seek to compel prosecutors to provide additional evidence for the allegations contained in the indictment.
Other requests
If the tactics used in other cases faced by the former president and his businesses are anything to go by, Trump’s lawyers could attempt to file an assortment of “wild card” motions, such as asking the judge to recuse himself from the case, alleging conflict of interest.
They may request that the trial be moved to a different venue — such as the Republican stronghold borough of Staten Island — where the jury pool might be more favourable to Trump, and ask for a series of detailed questions to be asked of jurors to pinpoint those with political bias. Motions to change venues are “seldom granted”, Franczyk said.
Given the growing number of cases faced by Trump, including a civil case brought by the New York attorney-general and a civil lawsuit by journalist E Jean Carroll, who claims the former president raped her in the 1990s, lawyers will probably ask for delays in order to co-ordinate court dates. The judge is under no obligation to grant these requests, however, and Judge Arthur Engoron, who is overseeing the New York attorney-general’s lawsuit, warned Trump’s lawyers against such tactics in that case last month.
Hearings
The judge may schedule hearings to discuss the substance of the motions or the state of the pre-trial process. New York state law mandates that defendants appear in person at every hearing, which can take place roughly once every four weeks.
However, “the court does not want an extravaganza every time the president comes”, Saland said. Trump might be allowed to appear remotely, as was often the court’s practice during the Covid-19 pandemic. The next hearing has been scheduled for December 4.
Gagging orders
Even before the indictment was filed, Trump was on social media decrying what he called a “political witch-hunt” and calling on his supporters to protest against the office of Manhattan district attorney Alvin Bragg.
He has since escalated his attacks on the Manhattan prosecutor and separately claimed Merchan, the judge, “hates me”.
Merchan stopped short of issuing a gagging order on Tuesday, which would have prevented Trump from talking publicly about the case. “Judges don’t like to do that”, according to Catherine Christian, a former assistant district attorney in Manhattan who is now in private practice.
But Merchan told Trump’s lawyers to remind their client to “please refrain from making statements that are likely to incite violence or civil unrest.”
Trial
Assuming the case survives all the pre-trial motions, the sides will exchange proposed witness lists and arrangements will be made for jury selection.
While Merchan, who presided over the case against the Trump Organisation in the same court last year, “is going to make sure that nothing will be delayed”, a trial is unlikely to happen in a hurry, Christian said.
“People shouldn’t be shocked; a three-witness case can take a year to get to trial,” she said. “Remember this is Manhattan, and Trump is not the only defendant being prosecuted. There are incarcerated people whose trial should go first.”
Written by: Joe Miller
© Financial Times
