Legal experts: Trump’s 'last-minute' motion to delay his NY criminal trial is 'meritless'

12 March 2024

Former President Donald Trump may have successfully pushed back three of his four criminal trials until after the presidential election. But the fourth is scheduled to happen in less than two weeks, and Trump's legal team is now hoping an 11th hour motion will push that trial back as well.

In an op-ed for MSNBC, former House Judiciary Committee impeachment counsel Norman Eisen and attorney Bryan Cave Leighton both wrote that the motion Trump's legal team recently submitted may be their most "desperate" delay tactic yet. In the motion, Trump argued that because the Supreme Court of the United States (SCOTUS) was currently considering his argument of absolute broad presidential immunity for official acts, that Merchan should delay the Manhattan trial until SCOTUS has handed down its ruling. Of course, because SCOTUS has scheduled oral arguments for April 25 — the very last day on the Court's calendar that oral arguments in any case could be heard — it's likely that SCOTUS may not issue a ruling on the immunity question until its term ends this June.

Eisen and Leighton explained that the motion itself is based on shaky arguments, and is unlikely to succeed given how it's been perceived by Judge Juan Merchan, who is overseeing proceedings in the trial.

"Already, [Merchan] has issued a stern order scolding Trump for his inexplicably late filing," Eisen and Leighton wrote. "The many flaws in Trump’s frantic last-minute tactic give the judge a host of reasons to reject it: Trump long ago waived this argument in the New York case; even if he hadn’t, no theory of absolute presidential immunity would apply to the purely personal and political conduct at issue."

Eisen and Leighton explained that "an even deeper mistake" in the argument the former president made in the motion was that he tried to claim that personal actions he took — like tweets intimidating former Trump lawyer "fixer" Michael Cohen when he was due to appear before Congress — amounted to official presidential duties that should also be protected by absolute immunity. the authors called Trump's argument on that front "ridiculous."

"In fact, the very tweets that Trump is trying to keep out of evidence also refute his argument," they wrote. "For example, on May 3, 2018, Trump tweeted: “Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign, from which he entered into, through reimbursement, a private contract between two parties, known as a non-disclosure agreement, or NDA.”

"Trump himself said that the payments were a private contract. He can hardly argue now that tweeting about that private contract was his official responsibility under Article II of the Constitution," they continued.

The former president is facing 34 felony counts relating to a hush money scheme he allegedly orchestrated ahead of the 2016 presidential election. Cohen — who already served a three-year prison sentence partially for facilitating the hush money scheme — is expected to testify against his former boss. Manhattan District Attorney Alvin Bragg may also call adult film star Stormy Daniels to the stand, who received a $130,000 payment in exchange for her silence about an affair she had with Trump in the late 2000s.

"This latest meritless motion is just another iteration in Trump’s incessant strategy to delay his day of reckoning," they added. "At least in New York, this tactic is wearing thin. In that order issued scolding the former president, an exasperated Merchan gave the prosecution until Wednesday to respond. Even more importantly, he required both sides to ask permission to file any more motions before the trial starts on March 25."

"That date has been set for weeks," they concluded. "There is no reason to change course now."

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