On Wednesday, New York Justice Juan Merchan issued a no-holds-barred order rejecting Donald Trump’s final realistic effort to postpone his criminal trial in the Stormy Daniels hush money case. His stiff rebuke, offered less than two weeks before jury selection is set to begin, means that Trump’s first criminal trial is almost certain to start in Manhattan April 15.
The harshness with which Merchan dealt with Trump’s latest delay ploy also demonstrates that the judge is finished with indulging the sorts of bad-faith tactics Trump’s legal teams have used in the past to delay justice—and, unlike other judges in these matters, is not afraid to say so. (The trial has already been delayed once, from March 25 to April 15.)
At issue in the ruling was a request from Trump’s legal team to postpone his Manhattan trial until after the Supreme Court on April 25 hears Trump’s disastrously broad argument that he is immune from all criminal prosecution for actions he took with regard to the Jan. 6 insurrection because, he asserts, he was acting within the scope of his presidential duties. Manhattan District Attorney Alvin Bragg has claimed that Trump filed fraudulent financial documents as part of a scheme to cover up an alleged affair with adult film performer Daniels in order to unlawfully influence the upcoming 2016 election.
How was that part of his presidential duties, and how is it related to his arguments about his Jan. 6 immunity, you might ask? The clearest answer is that it’s simply not. Trump asserts that tweets he sent while president—posts that Bragg alleges were attempts to coerce witnesses as part of his cover-up—were related to his executive responsibilities, making the case akin to one the Supreme Court will hear later this month. But Trump’s immunity claim in this case is so absurd that it was swiftly rejected when he tried to remove the case to federal court last year, and he quickly thereafter dropped his federal appeal of the issue.
Merchan did not find it necessary even to make any determination on the merits of Trump’s “immunity via Tweets” claim, even as Bragg’s office swatted it down in a response to Trump’s motion. Instead, Merchan pointed out, Trump had months to raise this argument, which he tried and failed to use in federal court, and waited to do so until 17 days before his trial was due to start, making it an untimely filing.
Why is he bringing it back up now? Because Trump’s legal team has been so far successful at delaying each and every one of his criminal trials with ridiculous arguments like this. The team’s strategy appears to be to delay these trials as much as possible, in the hope of quashing them entirely if and when Trump is restored to the White House in November’s election.
Judges in the former president’s other cases have been circumspect about calling out this obvious behavior by Trump, even as they have ultimately rejected his arguments for delay. Not so with Merchan, who stated, as bluntly as you could possibly expect from a judge:
Further, and as an aside, the fact that the Defendant waited until a mere 17 days prior to the scheduled trial date of March 25, 2024, to file the motion, raises real questions about the sincerity and actual purpose of the motion. After all, Defendant had already briefed the same issues in federal court and he was in possession of, and aware that, the People intended to offer the relevant evidence at trial that entire time. The circumstances, viewed as a whole, test this Court’s credulity.
A judge telling a lawyer or defendant that they’re testing the court’s credulity is as close, without the imposing of sanctions, as you’ll get to the judge calling them a liar. It shows, on the eve of trial, that Merchan may be the most unyielding and pertinacious jurist Trump has encountered so far. Trump has also likely done himself no favors with Merchan by issuing repeated personal attacks on the judge’s daughter, actions that caused the judge earlier this week to amend a gag order against Trump to include the family of court staff.
Although Wednesday’s rejection of this adjournment request is not Trump’s final delay tactic here, it was likely his best hope that the case might be put on ice if Merchan wanted to see how the Supreme Court ruled before moving forward. Trump’s final delay tactic, an ongoing request that the trial be adjourned due to excessive “pretrial publicity,” is even more ridiculous than his immunity effort, though, and that is going nowhere. As Bragg’s office noted Wednesday in response to Trump’s adjournment request, “It would be perverse to reward defendant with an adjournment based on media attention he is actively seeking.”
What is Trump’s next move? He could try to take his immunity fight to the U.S. Supreme Court, specifically with regards to this trial rather than the Jan. 6 trial, though that would almost certainly be a nonstarter. It’s true that the court is keeping his Jan. 6 trial on hold while it considers his potential criminal immunity for “official acts” while in office. But the two cases are radically different in key ways. First, and perhaps most importantly, Trump raised immunity early and often in the Jan. 6 case; here, by contrast, he failed to bring it up until the eleventh hour. In legal terms, that means he forfeited the defense and can no longer wield it against the New York charges. The law in this area is murky, largely because Trump’s lawyers simply made up the concept of presidential immunity from prosecution out of whole cloth. But even under Trump’s maximalist conception of the (fake) doctrine, it serves as an affirmative defense from criminal charges. These defenses are still subject to the usual principles of timeliness. And Merchan has definitively shown that the former president waited far too long to invoke the claim, weaponizing it at the last minute in a bad-faith bid to thwart justice.
Second, and just as importantly, the former president’s claim to immunity here is even weaker than in the Jan. 6 case—and it is laughably feeble there too. Recall that Trump claims he’s owed immunity from prosecution for any actions with the “outer perimeter of the president’s official duties.” The Jan. 6 prosecution, which Merchan evocatively dubs the “federal insurrection matter,” does cite a handful of actions that arguably touch upon executive duties, albeit in a corrupt fashion. For instance, special counsel Jack Smith’s indictment cited Trump’s failed coercion of the Department of Justice to cook up a bogus investigation into alleged voter fraud. This was not, of course, a legitimate or permissible exercise of executive power; nonetheless, presidents do have constitutional authority over the DOJ, so Trump insists that his crooked meddling fell within the “outer perimeter” of his responsibilities.
But what, exactly, touched on the president’s official duties here? Arranging for Michael Cohen to pay hush money to a porn actor before the 2016 election? Reimbursing Cohen while in office? Falsifying his own business and financial records to prevent the public from learning about the payoff? It is impossible, at least with a straight face, to suggest that these acts are executive responsibilities. Sure, Trump can try to take this argument to the Supreme Court to get the justices to delay the New York trial as they’ve delayed the Jan. 6 trial. But the argument here is much thinner. This case has nothing to do with presidential power and everything to do with one man’s corrupt, sordid lies.
