The New York trial is expected to be the first of four possible criminal trials against Trump, marking the first time a former U.S. president has faced such a charge. Trump, who is campaigning for reelection, appears the likely Republican nominee to challenge Biden in the 2024 election.
“This is a desperate move by somebody who wants to be sure that none of the trials can possibly happen in time to inform the voters before the election in November,” said George Washington University Law School professor Catherine Ross.
Trump faces four indictments — 91 criminal counts — for his role in the Jan. 6, 2021, attempt by a mob of his supporters to block the peaceful transfer of power by taking over the U.S. Capitol; for allegedly storing classified government records at his Mar-a-Lago home after being asked to return them; for alleged efforts to reverse his 2020 election loss in Georgia; and for allegedly falsifying records to cover up the nature of a payment to adult-film actress Stormy Daniels before the presidential election in 2016.
Trump’s election obstruction trial in federal court in D.C. has been postponed because of Trump appeals, and his cases in Florida and Fulton County, Ga., are mired in litigation.
Trump lawyers Susan Necheles and Todd Blanche argued in the 26-page filing in the New York case that it “is appropriate to await further guidance from the Supreme Court, which should facilitate the appropriate application of the presidential immunity doctrine in this case to the evidence the People intend to offer at trial.” They are also seeking to have some of the evidence excluded on immunity grounds.
Necheles and Blanche argued that legal distinctions between personal and presidential acts are key to their case. “This area of law is evolving in real time,” the lawyers wrote.
A spokesperson for Manhattan District Attorney Alvin Bragg declined to comment. His office is expected to file opposition papers this week.
Karen Friedman-Agnifilo, a former top executive in the Manhattan district attorney’s office under Bragg’s predecessor, said that the defense making this type of motion shortly before the trial was to be expected and is motivated by a desire to buy time, but that it’s devoid of legally sound rationales.
“We were waiting to see what tactic he would take,” Friedman-Agnifilo said. “There were several that he could take in order to delay this case because he clearly doesn’t want to go to trial on this or any other case.”
Friedman-Agnifilo said that Trump’s lawyers appear to be making the request to New York Supreme Court Justice Juan Merchan because of the timing this month of the Supreme Court’s agreement to hear the case. “That’s why [Trump is] going to say he couldn’t do it sooner. However, the arguments he makes are all recycled from his prior presidential immunity arguments.”
Trump’s motion points to evidence expected to be used at trial by Bragg’s team, including tweets Trump sent as president. Trump’s side said that Bragg’s plan to use that kind of evidence means the New York case has issues that overlap with the D.C. election obstruction indictment where presidential immunity is still undecided.
Merchan has repeatedly said the trial date is a firm one, rebuffing past attempts by Trump’s side to push it back. Last week, a day after the adjournment request was made, Merchan issued an order saying that his permission was required to file any other motions before the trial start, noting that Trump’s motion “does not explain the reason for the late filing, a mere two and a half weeks before jury selection is set to begin.”
It is unclear whether Merchan will reject the new request by highlighting the differences between the Jan. 6 case and the one before him that accuses Trump of fabricating business records to conceal a $130,000 payment to Daniels.
Prosecutors argue that Trump’s reimbursements to his former lawyer Michael Cohen for the Daniels payment were illegally classified as routine legal expenses, when they were intended to benefit Trump’s presidential campaign and should have been reported to campaign finance authorities.
Trump was indicted on 34 counts of falsifying business records, a low-level felony, that is eligible for a term of incarceration if he is convicted. The trial is expected to last about two months.
The former president has denied having a sexual encounter with Daniels years before the payment was made. He has alternately said the payment was a personal matter not related to his candidacy and that Cohen acted on his own.
Trump has previously pushed an immunity argument without success, including when he tried to get the state court case removed to federal court on the basis that some of the reimbursement payments at issue in the prosecution occurred while he was a sitting president. Trump lost that effort and failed to preserve his right to argue it.
“It is a desperate and frivolous effort to achieve the delay that is always the hallmark of how Trump litigates these cases, but here, it’s not going to work,” said Norman Eisen, a former White House special counsel and former U.S. ambassador to the Czech Republic who served in the Obama administration.
Eisen pointed to a decision by U.S. District Court Judge Alvin Hellerstein on July 19, 2023, which explicitly says that Trump had waived his presidential immunity argument in the New York matter. Although Trump began to appeal that decision, which denied his request to move the case to federal court, he withdrew the appeal in November.
Eisen said Trump had every right to raise the arguments he is now making with Hellerstein in federal court but failed to. The Bragg case was “an obvious contender” for a presidential immunity claim all along, Eisen said.
“That was the right time to do it. He waived it, and the judge noted he waived it,” Eisen said, adding that he expects Merchan to give the new motion “the back of the hand and rightly so.”
Ross, the GW Law expert, agreed that the last-minute motion in New York is a losing battle. She said the defense motion in the New York case was filed “to gum up the works and delay the trial that’s supposed to begin this month.”
“Every day [Trump’s side is] looking for another headline that gets people distracted from what the real issues are,” Ross said.
Former federal prosecutor Michael Zeldin said Trump’s claims in the New York motion don’t compare to the facts of the Jan. 6-related case that the Supreme Court will address. In that case, “at least [Trump] can argue that I’m the president of the United States, I’m trying to make sure there isn’t fraud in the election process.”
“Here, it’s just not even arguable,” Zeldin said.
