At an emergency conference late Monday afternoon, appeals Judge Lizbeth Gonzalez heard arguments from Trump lawyer Emil Bove about a recent survey of Manhattan residents commissioned by the defense. Of those surveyed, 61 percent said they believed Trump was guilty in the hush money case, according to the attorney.
Bove asked for the trial to be placed on hold.
“Our point is that jury selection cannot proceed in a fair manner next week in this county,” Bove said.
Steven Wu, an attorney for Manhattan District Attorney Alvin Bragg’s office, argued that selecting a fair jury is possible even among people who have preconceived notions about the case if they say they can be fair and evaluate the facts.
Wu also said Trump has been seeking much of the media coverage that the defense now says has poisoned the jury pool.
“This is the defendant coming into this argument with unclean hands because the publicity is in large part his own,” Wu said.
Court documents were not immediately publicly available Monday but another separate set of filings is centered on Merchan’s limited gag order protecting people involved in the case and their relatives, according to a person with knowledge of the proceedings.
Arguments on the gag order issue are expected to be heard by an emergency appeals judge on Tuesday.
The trial was supposed to have started on March 25, but Merchan postponed it to April 15 after federal prosecutors recently turned over about 100,000 pages of records to the defense.
The former president — the likely Republican presidential nominee — has been openly critical of people including the judge’s daughter on the campaign trial and on social media.
In the trial scheduled to begin April 15, Trump faces 34 counts of falsifying business records related to a $130,000 payment to adult film actress Stormy Daniels ahead of the 2016 election. The payment was allegedly to keep her quiet about a sexual encounter she says she had with Trump years earlier.
Merchan issued a limited gag order against Trump on March 26, a day after the final pretrial conference in the case. His order barred Trump from publicly discussing various players in the case including court staff, witnesses and some prosecutors or their families.
The limited gag order did not include Manhattan District Attorney Alvin Bragg, the judge or their relatives, but concerns grew after Trump continued to discuss Merchan’s adult daughter on social media.
Merchan expanded the order on April 1 to include protections for Bragg’s family members and his own, saying Trump’s “pattern of attacking family members of presiding jurists and attorneys assigned to his cases serves no legitimate purpose.”
“It merely injects fear in those assigned or called to participate in the proceedings, that not only they, but their family members are ‘fair game’ for [Trump’s] vitriol,” Merchan’s order said.
The judge also warned that Trump’s behavior could lead to a ruling that would bar him from having access to juror names, which will be available to the parties but will not be made public.
Two days after the order was expanded, Trump posted items by conservative bloggers discussing the judge and his daughter, who runs a political marketing and fundraising company serving Democratic candidates including the Biden and Vice President Harris campaign.
Trump and his advocates have argued that the judge cannot be fair because of his close ties to someone whose profession revolves around supporting Democratic campaigns.
In August, the defense lost a motion to have Merchan recuse himself from the case based on his daughter’s job and because of a pair of small donations the judge apparently made to Biden’s campaign and to a progressive organization. Merchan gave $15 to Biden in 2020, and he made two $10 donations to Democratic groups.
Prosecutors say Trump’s reimbursements to his former lawyer Michael Cohen were illegally documented as legal fees even though it was carried out to support Trump’s campaign.
Trump has been indicted in three other jurisdictions with charges pending in each.
In D.C., Trump faces charges that he tried to obstruct the election before the Jan. 6 insurrection. In Georgia he is indicted in a state-level case for trying to undo the results of the 2020 election. He also has a federal case in Florida for alleged violations of the Espionage Act by illegally retaining classified government documents after leaving office. He faces additional counts there on obstructing government efforts to retrieve them.
He has pleaded not guilty to all 88 counts he faces.
