Manhattan Supreme Court Justice Juan Merchan has scheduled a hearing for Monday, March 25 to get to the bottom of why somewhat voluminous tranches of documents have been produced to Donald Trump only in March of this year, for a criminal trial against the former president that was supposed to have started on Monday, but has now been postponed for at least 20 days (until tax day, April 15). When Justice Merchan hears District Attorney Alvin Bragg and Trump’s attorneys on that date it likely will be tranche warfare: Trump’s side will contend that the delayed disclosures of relevant materials in drips and drabs is the DA’s fault, and Bragg will be laying blame on Trump and on the federal prosecutors in the Southern District of New York.
To understand the dispute, one has to go back to the relatively new State of New York law that requires the prosecution to provide to the defense, in sufficient time to prepare for trial, all relevant documents (CPL section 245.20). The law embodies the constitutional precepts in cases like Brady v Maryland and its progeny that puts the onus on the government to produce exculpatory and impeachment evidence to the defense (the latter comprises information that can be used to question the credibility of prosecution witnesses). Failure to timely turn over such information within the prosecution’s possession, custody or control –regardless of whether the failure was intentional – can lead to sanctions, up to and including the dismissal of the criminal charges (CPL 245.80).
The reason for the hearing is that there clearly is a set of material that the SDNY prosecutors have only recently provided to Bragg and the defense pursuant to a subpoena that Trump served on the SDNY in January of this year. Within this tranche of documents, several questions exist:
- Did Bragg ask the SDNY prosecutors for all exculpatory or impeachment information?
- Does any of the new material consist of documents that Bragg had requested over a year ago, but had not been given? If so, what was the reason it was not provided by the federal prosecutors to the DA?
- Does any of the material consist of relevant information that is exculpatory or impeachment material (which Trump needs more time to be able to use in his defense)? And, if so, how could such evidence be used to advance a Trump defense or undermine any potential prosecution witness?
The DA is likely to make several arguments beginning with that he cannot turn over what he sought but does not have. And so, Bragg’s first line of argument will presumably be to explain that he had asked over a year ago for the relevant material from the SDNY prosecutors and turned over what he was given. The defense for its part will be focused on what precisely Bragg asked for, although that is largely irrelevant so long as Bragg in fact timely turned over all relevant information that he was given, and so long as Bragg was not playing games with what he asked for (ie trying to not take possession of or learn about exculpatory or impeachment evidence, which seems unlikely to have occurred).
Bragg will also seek to explain he was not working with the federal prosecutors on the case and thus he was responsible for disclosing only what he in fact possessed, not what the federal government possessed but had not shared with him. In this regard, he will be able to point to the fact that the two offices were acting independently of each other, and the DA had in fact complied with its discovery obligations and turned over in a timely way what it had been given. (Indeed, the kerfuffle over Trump’s subpoena to the SDNY shows how the DA and SDNY were acting independently of one another.) In short, it would be unlikely that the DA’s Office had also simultaneously caused the federal prosecutors as an alter ego not to comply with its discovery obligations.
There is a compelling fact that evidences why the two prosecutors offices had every reason to act independently of each other: Alan Weisselberg.
Weisselberg was the longtime Chief Financial Officer of the Trump organizations. The DA has now prosecuted Weisselberg twice — for a multi-year tax scheme and, more recently, for lying in connection with the Attorney General’s civil investigation (the one that resulted in the $464 million judgment). When Weisselberg pleaded guilty in the DA’s first case he agreed to withdraw any claim that the DA had relied on or been tainted by immunized testimony Weisselberg may have given to the federal government. From that waiver it seems clear that the SDNY prosecutors had immunized Weisselberg and he gave testimony to them under a grant of immunity. That would mean that no direct evidence from Weisselberg (i.e., his federal testimony) or any leads from that testimony could be used to prosecute him. The DA would have every reason therefore to not have any of his pending Weisselberg criminal investigations tainted by any such information, which could happen if he worked with the SDNY or was given access to such tainted information.
So, on March 25, look for the DA to show that he had asked for exculpatory and impeachment information, had turned over what he had been given, and had not been working hand-in-glove with the SDNY. What remains to be seen, although largely irrelevant to the legal issue before Judge Merchan, is what accounts for the delayed production of any relevant material from the SDNY prosecutors to Trump and Bragg. That may be an interesting bit of trivia, but legally beside the point.
Editor’s note: This article may be updated as new court filings are published before the hearing.