This guide explains what to expect at former President Donald Trump’s landmark criminal trial in Manhattan for allegedly falsifying records to cover up payments made to hide information from voters. It is an excerpt from the forthcoming book Trying Trump: A Guide to the Manhattan Election Interference Trial.
Table of Contents
FROM INDICTMENT TO DISPOSITIVE MOTIONS
1. What is the case about, and why does it matter?
2. Is the case weak or strong?
5. What happened on preemption?
6. What happened on Motions to Dismiss?
7. Why was the March 25, 2024 start of the trial delayed until April 15?
8. Didn’t a former prosecutor quit the case and criticize it?
THE JUDGE, THE LAWYERS AND THE COURTHOUSE
11. Who is on the Prosecution Team?
12. Who is on the Trump Defense Team?
14. How does the press get access to the court?
15. Will Trump try to move the trial to a different county in New York?
16. What happens if there is a change of venue?
17. What’s the legal standard?
18. Can Trump change the venue by claiming that Justice Merchan is biased?
19. When does Trump need to file a motion to change venue?
20. Will the trial be stayed while Trump seeks a venue change?
21. Is there a gag order in place?
22. What motions in limine did the parties file, and how did the court rule?
a. State of New York’s motions in limine, Trump’s Opposition, and the court’s rulings
b. Trump’s motions in limine, DANY’s opposition, and the court’s ruling
23. What discovery has Trump turned over?
24. Does the criminal trial of the Trump Organization business offer any insight into this case?
26. How many jurors will there be?
29. What is voir dire/jury selection and how does it work?
30. What can we expect from jury selection here?
c. Potential Questions and Striking Jurors
31. Will Trump know the jurors’ names and addresses?
TRIAL: THE CORE PROSECUTION AND DEFENSE CASES
32. What are the stages of a criminal trial?
33. What can we expect from opening statements?
34. What is the prosecution’s case?
36. Will Trump be present during trial?
37. Will Trump testify, and will it hurt him if he doesn’t?
38. How long will the trial last?
39. How long will jury deliberations take?
40. What does DANY have to prove to convict?
41. What are the other crimes that DANY has to prove Trump intended to commit, aid, or conceal?
a. Federal Election Campaign Act (FECA)
42. What is the burden of proof?
43. What will be Trump’s main legal defenses?
44. Does presidential immunity apply?
45. Will Trump argue an “advice-of-counsel” defense?
46. What will be the jury instructions?
47. If convicted, what will be Trump’s sentence?
48. If convicted, does Trump have a right to appeal?
INTRODUCTION
On April 15, Donald Trump will appear in a Manhattan courtroom in the first ever criminal trial of a former president. He is accused of covering up payments made to hide information from voters in the last days of the 2016 election. A grand jury in Manhattan indicted him for this conduct on March 30, 2023, charging him with 34 felony counts of Falsifying Business Records in the First Degree. Each carries a potential sentence of up to 4 years’ imprisonment.
In this Guide, we provide a comprehensive overview of what to expect at the landmark trial. We cover the judge, the parties, their lawyers, the jury, the courtroom—and the full gamut of legal activity that has taken or will take place during the pretrial and trial. That ranges from jury selection to opening statements, from the prosecution case to Trump’s defense, from closing statements to jury instructions, and from sentencing to appeal.
As an evaluative matter, our assessment of the evidence is that there is a significant likelihood of conviction. We also assess that if Trump is convicted, a sentence of incarceration is not unlikely. We anticipate that should that come to pass, Trump will be released pending appeal, which will be a lengthy post-trial litigation process. We explain all of that and more in this Guide. We hasten to add that we are simply analyzing the present likelihood of those outcomes based on what is known today about the facts and the law, that trials are inherently unpredictable, and that Trump must of course be considered innocent until proven guilty.
We organize this essay in the form of 50 questions and their answers. We chose this format mindful that some readers will move from top to bottom while others may dip in and out or return to this document as particular questions arise over the course of the lengthy proceedings.
Like prior publications in our multi-part Just Security series on the Manhattan case, we will periodically refresh this report. That includes in response to reader requests, comments and corrections. Please feel free to contact us at lte@justsecurity.org.
FROM INDICTMENT TO DISPOSITIVE MOTIONS
1. What is the case about, and why does it matter?
The charging documents allege that Trump “repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.” Trump is alleged to have:
orchestrated a scheme with others … by identifying and purchasing negative information about him to suppress its publication and benefit [his] electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York.
As part of an alleged “catch and kill” scheme orchestrated by Trump with his fixer Michael Cohen, American Media, Inc. (AMI)’s former CEO David Pecker, and others, Cohen paid adult film actress Stormy Daniels $130,000 for the exclusive rights to her story of a sexual encounter with Trump. Trump reimbursed Cohen, and Trump and Cohen allegedly falsified their business records to conceal the true nature of these payments, which the Manhattan District Attorney’s Office (DANY) alleges should have been claimed as a campaign-related expense. The 34 counts consist of one count for each of the eleven checks to reimburse Cohen, also with eleven fake corresponding invoices and twelve corresponding false ledger entries.
The facts of the case have been covered at length (including by us in a detailed chronology), and the grand jury’s indictment and accompanying Statement of Facts speak for themselves. The prosecution has said that this case is not just about an affair and hush money payments, neither of which are illegal. Rather, the DA has explained the case concerns an attempt by Trump to interfere in the outcome of the 2016 presidential election outcome. For example, during a radio interview in December, Bragg said that the “core” of the case “is not money for sex … It’s about conspiring to corrupt a presidential election and then … lying in New York business records to cover it up … That’s the heart of the case.” He was even clearer in January of this year, saying: “It’s an election interference case.”
Prosecutors will use the timing of the alleged scheme to try to establish its connection to the election. The hush money arrangement with Daniels occurred just after the Access Hollywood scandal, where Trump boasted about committing sexual assaults, and was finalized on October 27, 2016, twelve days before the election. As described in the Statement of Facts, Trump initially directed Cohen to delay the payments to Daniels until after the election, “because at that point it would not matter if the story became public.” However, “with pressure mounting and the election approaching,” Trump ultimately agreed to the payoff. As one of the coauthors explained for the New York Times:
It’s entirely possible that the alleged election interference might have altered the outcome of the 2016 contest, which was decided by just under 80,000 votes in three states. Coming, as it might have, on the heels of the “Access Hollywood” disgrace, the effort to keep the scandal from voters may have saved Trump’s political prospects.
As it stands, the prosecution appears ready to present the case at trial by “casting it as a clear-cut instance of election interference, in which a candidate defrauded the American people to win the White House in 2016,” according to the New York Times.
Team Trump, by contrast, describes this case as simply a political prosecution by a partisan Democratic district attorney. As with his two impeachments, three other criminal prosecutions, and multiple civil suits, Trump has denounced this case as a “witch hunt.” More specifically, his attorneys describe the indictment as a “discombobulated package of politically motivated charges marred by legal defects” that came after a “five-year meandering, halting, and roving investigation that entailed inexplicable and unconstitutional delay.”
The defense will likely argue that Trump’s payments were a private matter designed to avoid embarrassment to his family and therefore he had no criminal intent to affect the election. The defense will surely claim the proof of Trump’s wrongful intent depends on Cohen, who they describe as a convicted perjurer and disgruntled former employee. They will further argue that Trump could not have falsified business records through the purely personal conduct of “paying his personal attorney using his personal bank accounts.”
Trump and his attorneys have referred to this prosecution as the “zombie case,” as a former senior DANY prosecutor termed it, “because of how many times [DANY] abandoned the theory, only to revive it when other inquiries were even less fruitful.”
2. Is the case weak or strong?
From an outside perspective, it appears that DANY has built a robust case along a narrowly-tailored theory of prosecution: falsifying business records to conceal criminal conduct that hid damaging information during the 2016 presidential campaign. Despite the historical significance of being the first indictment of a former president, the core allegations of falsifying business records are routine. As we detail below, the Manhattan DA has brought dozens of these cases over the years, including for covert payments made to benefit political campaigns. Thus, while having an ex-president as the defendant may be novel, prosecuting this type of conduct is not.
Despite early and ongoing skepticism of DANY’s case, we view it as strong because prosecutors will likely establish with relative ease three of the four corners of the alleged crimes: the “catch and kill” scheme, the payment to Daniels to bury the story of the affair, and the paper trail of reimbursements and records that mischaracterized and concealed the nature of the hush payment. As one commentator wrote, “the spine of the case is the paper trail of the money, [and] Bragg will be bringing the receipts to trial.”
The fourth corner of the scheme is Trump’s intent to commit or conceal another crime, as the law requires to be elevated to the felony first-degree falsification of business records. DANY will have to prove that Trump intended to commit or conceal campaign finance violations (state or federal) or tax violations. Proving this intent will be more difficult than proving the objective facts (as it almost always is), but as discussed in more detail below, DANY appears to have the upper hand.
Some observers have criticized the case as unlikely to succeed because it is too political or legally convoluted. But as one of the coauthors of this Guide wrote, those criticisms are misplaced. Ultimately, barring any major surprises at trial, DANY will likely be able to convince a unanimous jury of the 34 charges. We explain below much more about why, including why Trump’s defenses will likely fail.
Others have criticized DANY for being too slow to charge the alleged misconduct, which dates from 2016 and 2017. But it took several years for the evidence of possible wrongdoing fully to emerge. An initial subpoena to Trump was issued by Bragg’s predecessor in 2019, and Trump fought it for years, including multiple trips to the U.S. Supreme Court. After Bragg was elected in 2022, he first successfully prosecuted the Trump Organization, along with its CFO Allen Weisselberg, for a criminal financial scheme. He simultaneously evaluated the instant case and brought it a little more than a year after taking office and within the statute of limitations. That is not an inordinate delay, as Justice Merchan already has ruled.
Others claim the charges brought against Trump—for falsifying New York business records—are unusual. Not so. They are in Bragg’s words, the “bread and butter” of his office’s “white collar work.” DANY’s record of prosecuting felony falsification of business goes far beyond prosecuting Trump businesses. When Bragg first charged Trump in April 2023, he stated that in his 14 months in office he had already prosecuted 117 felony counts of falsifying business records against 29 individuals and companies. During the ten years from March 2013 to March 2023, the office prosecuted 437 such cases. Moreover, DAs across the state of New York frequently charge defendants with felony falsification of business records. Reports in April 2023 stated, “Data shows 9,794 cases involving state penal law 175.10, or falsifying business records in the first degree, have been arraigned in both local and superior New York state courts since 2015.”
Previous Just Security analysis found that use of the statute is “commonplace and has been used by New York district attorneys’ offices across the state to hold to account a breadth of criminal behavior from the more petty and simple to the more serious and highly organized.” In fact, an additional Just Security analysis found that falsification of business records has previously been charged, as here, in the context of political campaign violations, some of which were “important” and “closely analogous.” Take for instance former New York State Assemblyman Clarence Norman who was convicted in 2005 of falsifying business records in connection with campaign finance violations following two separate trials. Some years later, in 2018, Richard Brega, a transportation executive, pleaded guilty to one count of felony falsifying business records for his misrepresenting to the New York State Board of Elections the source of funds that he funneled into a county executive campaign. That same year Richard Luthmann was arraigned for multiple felony charges including falsifying business records and election law violations after he impersonated New York political figures on social media in an attempt to influence campaigns in 2015 and 2016; he subsequently pleaded guilty. These cases, as one of the coauthors of this Guide wrote for the New York Times, show that Bragg “is not navigating uncharted waters.”
3. What has happened so far?
DANY has so far won all the major legal battles leading up to trial as a result of successful actions by Bragg, many of which went unnoticed by the news media when they happened.
4. What happened on removal?
First, DANY defeated Trump’s attempt to litigate the case in federal court. On May 4, 2023, Trump initially removed the case to federal court, claiming that the charged conduct occurred while he was president and was part of his official responsibilities. In support of removal, Trump claimed immunity on the basis that out of constitutional concerns for his duties as president, he placed his business in a trust and hired Cohen to handle his personal affairs to keep his personal affairs separate from his public duties.
Following a June 27, 2023 hearing, on July 19, 2023 U.S district court Judge Alvin Hellerstein granted DANY’s motion to remand the case back to state court. Judge Hellerstein ruled that Trump failed to establish that the alleged conduct had any connection to his official duties as president. To the contrary, the court wrote, “The evidence overwhelmingly suggests that the matter was a purely personal item of the President—a cover-up of an embarrassing event. Hush money paid to an adult film star is not related to a President’s official acts. It does not reflect in any way the color of the President’s official duties.” In denying that Trump had raised a colorable immunity defense,[1] the court explained in the same ruling:
Reimbursing Cohen for advancing hush money to Stephanie Clifford cannot be considered the performance of a constitutional duty. Falsifying business records to hide such reimbursement, and to transform the reimbursement into a business expense for Trump and income to Cohen, likewise does not relate to a presidential duty.
5. What happened on preemption?
DANY also defeated Trump’s claim that federal election law preempts New York’s state jurisdiction. Trump raised this defense as part of his attempt to remove the case, claiming that the charges against him are based on alleged violations of state and federal election laws and are therefore preempted by the Federal Election Campaign Act (FECA). As an author of this Guide explained:
Federal preemption refers to the circumstance where federal law renders a state law unenforceable. The Supremacy Clause of the United States Constitution makes federal law ‘the supreme Law of the Land.’ As a result, when there’s some irreconcilable conflict between state and federal law (conflict preemption), when Congress’ legislation of an area of law is sufficiently pervasive (field preemption), or even when Congress just says so (express preemption), the federal law wins and the state law is unenforceable.
Rejecting Trump’s argument, Judge Hellerstein found, “The Indictment does not intrude on FECA’s domain.” The judge found that the case centered on document falsification, and that collateral impact of the kind presented here on a federal election failed to constitute a sufficient basis for federal preemption of state criminal charges. After a lengthy analysis of applicable cases and other authorities, he concluded that the “mere fact that Trump is alleged to have engaged in fraudulent conduct with respect to a federal election is not a basis for preemption.” Trump ultimately chose to abandon his appeal of Hellerstein’s ruling.
6. What happened on Motions to Dismiss?
DANY’s next significant pretrial victory was largely defeating Trump’s various motions to dismiss after the case returned to state court.
In September 2023, Trump filed omnibus motions to dismiss the charges, which DANY opposed in November (Trump replied in support weeks later). Trump raised several grounds to dismiss: (1) pre-indictment delay; (2) the records in question are not records of a business enterprise but rather records of Trump personally and his revocable trust; (3) the indictment lacked a viable object offense to justify the first-degree falsification of records; (4) insufficient evidence of an intent to defraud; (5) selective prosecution; (6) statute of limitations violations; and (7) multiplicity, i.e., that the indictment charges the same crime in different counts. In his omnibus filing, Trump also sought that DANY provide additional particulars to its case, asked to inspect the grand jury minutes and for a hearing on alleged violations of grand jury secrecy, and argued that DANY was not complying with its discovery obligations.
On February 15, Justice Merchan announced from the bench during a pretrial hearing that he had denied Trump’s motion to dismiss. Later that day, he issued an order in which Trump lost on all but a few points. While “broadly advancing” DANY’s theory of the case, the court found:
- There were “legitimate reasons” for the delay in bringing the case, namely the preceding federal investigation and a lawsuit that Trump initiated over a subpoena for tax records.
- The invoices, checks, and general ledger entries underlying the 34 counts are business records of an “enterprise,” as that term is broadly defined to include any person or group engaged in an organized activity for which records are kept. The payments made to Cohen “‘exemplify the intermingling of the Trump Organization’s business records and Defendant’s purportedly personal expenses.’”
- There were three viable “object offenses”—violations of FECA; violations of New York election law; and violation of New York tax law—and there was sufficient evidence of each presented to the grand jury. However, the court sided with Trump in finding that there was insufficient evidence to support Trump’s intent to falsify business records outside of the Trump Organization. The Court explained it was not deciding whether Trump knew about the falsification of AMI’s and Cohen’s records but rather that was “not convinced that this particular theory fits into the ‘other crime’ element” of the law, but instead is “intertwined and advances” the election and tax crimes.
- There was no evidence of selective prosecution because DANY has previously charged other defendants with the same falsification of records offenses, and because Trump failed to show he was treated any differently than other defendants for whom there was probable cause of committing that crime.
- There was no statute of limitations violation. Although the charges were brought more than the usual five-year statute of limitations for falsification of records, an executive order issued by the Governor of New York during COVID tolled the five-year period as a matter of law.
- There was no violation for multiplicity because each count is based on a separate false entry that legally supports a different crime.
Additionally, the court granted Trump’s motion to inspect grand jury minutes, precluded DANY from advancing falsification of business records as the possible “other crime” for felony purposes, and precluded DANY from introducing any new or different “other crime” theories. The court also denied Trump’s request for a hearing on grand jury secrecy, did not require DANY to produce a bill of particulars, and declined to strike DANY’s certificates of compliance with its discovery obligations.
For now, Trump cannot relitigate the denial of his motions to dismiss, unless and until he is convicted of these crimes and appeals the conviction. In terms of evidence and argument at trial, as discussed at Question 22, Trump filed motions in limine seeking to limit how DANY could prove the object offenses and that Trump’s personal and trust records constitute business records. On the former, he lost on all but a few minor points, and on the latter, the court made clear that it had already rejected those arguments. At the same time, DANY sought to block Trump from introducing evidence of the legal defenses the court has already rejected, and the court agreed with DANY on that matter.
Trump could again raise on appeal the validity of the indictment and other issues, but that would be after trial and following a possible conviction.
Other pending motions are addressed below at Question 7 (motions to dismiss and adjourn based on discovery violations), Question 21 (limiting Trump’s extrajudicial statements), and Question 44 (motions to dismiss and adjourn based on presidential immunity).
7. Why was the March 25, 2024 start of the trial delayed until April 15?
Jury selection was slated to begin on March 25, 2024, but the trial was postponed when a large volume of documents were produced by federal prosecutors in response to a subpoena by Trump. On March 15, 2024, the court adjourned the case for 30 days—at least until April 15—to address alleged discovery violations that Trump raised. The court scheduled a hearing for March 25 to address the discovery issues. At the hearing, Justice Merchan decided in favor of DANY and ruled that no further delays were in order. He set jury selection to begin on April 15.
On March 8, Trump had filed a letter with the court seeking permission to file a motion to dismiss the indictment, or alternatively preclude Stormy Daniels and Michael Cohen from testifying, and adjourn the trial for at least 90 days, as a result of DANY’s alleged discovery violations.[2] The gist of Trump’s motion was that DANY “engaged in widespread misconduct” involving (1) “attempts to suppress” the production of voluminous materials by the United States Attorney’s Office for the Southern District of New York (USAO-SDNY); (2) eleventh-hour productions of discoverable information related to Cohen and Daniels; (3) untimely notice of a rebuttal expert; and (4) unnecessary redactions.
On March 4, USAO-SDNY produced over 73,000 pages of materials to Trump, and it then produced another 31,000 pages on March 13. These productions occurred in response to a subpoena Trump had issued to USAO-SDNY in January 2024. Trump contended that the last-minute production of such a large volume of discovery material requires, at a minimum, an adjournment of trial to give Trump and his team sufficient time to review these records. Although USAO-SDNY, not DANY, produced these materials, Trump argued that Bragg’s office is responsible for the late production, in part, because it obstructed Trump from obtaining these records by contesting subpoenas Trump issued in 2023.
Trump also asserted a discovery violation for DANY producing a small volume of materials regarding Cohen and Daniels over the past month. The materials contain impeachment materials against both witnesses, including information pertaining to a documentary about Daniels that NBCUniversal announced on March 7 was to be released on March 18, one week before the scheduled trial date. Trump claimed DANY acted in bad faith in not disclosing this information earlier and argued that, in combination with the USAO-SDNY production, the court should dismiss the indictment. If the court does not dismiss the case, Trump asked for the court to preclude all of Cohen’s and Daniels’ testimony, essentially reasserting arguments from his motions in limine about barring Cohen and Daniels that were rejected as discussed at Question 22.
Trump also sought to preclude certain testimony from an expert witness named Adav Noti. DANY disclosed Noti as a rebuttal witness to Trump’s intent to call former Federal Elections Commissioner Bradley Smith, as well as to testify about agreements between Cohen, AMI, and Pecker with other federal agencies concerning election law violations. Trump’s motion claimed DANY’s notice of Noti was untimely as it occurred after the deadline for motions in limine and that the subject of those agreements was improper. As discussed at Question 22, Smith’s testimony was allowed but sharply curtailed by the judge in ruling on the motions in limine, and we anticipate that Merchan will allow similarly curtailed rebuttal testimony from Noti. For the remainder, Trump is essentially reasserting arguments from his motions in limine that were rejected.
On March 14, DANY submitted an initial response to Trump’s motion, agreeing to a 30-day adjournment and asking until March 18 to respond in full. DANY explained the timing of the USAO-SDNY production was largely Trump’s fault and that, based on its current but ongoing review on production, all but a few hundred pages of the 73,000 page production (as of that time) were irrelevant.
In its March 15 ruling, the court gave DANY until March 18 to respond and ordered the parties by March 21 to submit a detailed timeline of events related to the document requests and productions. On March 18, DANY filed its opposition to Trump’s motion vis-à-vis USAO-SDNY’s production, arguing that there was no discovery violation, that there were only “an estimated 270 documents” that were relevant and new (related to Cohen) in the March 13 production of approximately 31,000 pages, which could easily be reviewed within the 30-day adjournment already granted, and were in any case mostly “inculpatory.” DANY noted facts that suggest USAO-SDNY was dilatory. For instance, data from Cohen’s phone was sought in January and February 2023 but the USAO-SDNY “declined” to turn over the information “because it would be unduly burdensome.” DANY also noted that its review was ongoing and it was “still in the process of determining how many relevant, undisclosed documents were within the information sources the USAO previously declined to provide.” That said, DANY contended the responsibility lay with Trump’s “own inexplicable and strategic delay,” not DANY or USAO-SDNY, “independent prosecutorial” entities operating in “good faith.”
DANY also filed a separate opposition to Trump’s other discovery arguments on untimely production of discoverable information related to Cohen and Daniel, and untimely notice of a rebuttal expert. DANY argued that Trump’s “grab-bag of meritless discovery arguments” are nothing but the latest tactic in trying to delay his trial and evade accountability. They stated, “Enough is enough. These tactics by defendant and defense counsel should be stopped.” Trump’s motion focused on alleged discovery violations from summer 2023 and should be procedurally barred, DANY said, and, in any case, lacks merit. On the NBCUniversal documentary, DANY made clear that it acted diligently, and repeatedly reached out to the production company, issuing a subpoena on February 6, which was responded to on March 1, and handed over to the defense on the next business day, March 4. Responding to Trump’s allegation that DANY worked with Daniels to “hide” the release of her upcoming documentary and time its release to impact the jury pool, DANY stated that it was totally “false and nonsensical.” Neither DANY nor Daniels controlled the release date of the documentary, and, quite contrary to concealing the documentary, DANY turned it over to Trump soon after receiving it. In any case, so long as there is not bad faith involved, DANY argued it was under no “duty to seek out and disclose information concerning a private contract between a potential witness and a publisher,” but did so anyway, in the interests of openness.
And finally, making short work of Trump’s argument that notice of disclosure of expert Noti was untimely or “strategically timed” to fall after Trump’s deadline to respond to motions in limine, DANY made clear that Trump had consented to a March 1 deadline for such notice. DANY also said the issue was likely mooted by the court’s ruling on a pretrial motion limiting the scope of former FCC Commissioner Smith, whom Trump intends to call (discussed at Question 22).
At the March 25 hearing, the court agreed with DANY’s arguments, rejected Trump’s requested relief, and set trial for April 15. From the beginning of the hearing, Justice Merchan appeared skeptical of Trump’s claims of prosecutorial misconduct. He immediately questioned Trump’s attorneys about their claims coming on the eve of trial, noting that they waited until two months before trial to request the documents and then failed to raise the issue with the court at the February 15 hearing. The court engaged in a contentious back-and-forth with Trump’s attorney about whether documents in USAO-SDNY’s possession are under DANY’s custody and control. Justice Merchan said, “You are literally accusing the Manhattan DA’s Office and the people assigned to this case of prosecutorial misconduct…and you don’t have a single [case] citation to support that allegation that the USAO is under the DA’s control.” He also said the defense has alleged “incredibly serious, unbelievably serious” allegations of misconduct against the prosecutors and had accused “me of being complicit in it” without factual or legal support, which was “disconcerting.” The court found DANY “went so far above and beyond” in producing evidence that “it’s odd that we’re even here taking this time.”
The judge also questioned the parties about the universe of relevant documents in USAO-SDNY’s over 150,000-page production. DANY estimated there were approximately 300 relevant documents, “almost exclusively cumulative and in our view inculpatory.” Trump’s lawyers claimed there were “thousands and thousands” after initially not satisfactorily answering the court’s questions. Ultimately, the court concluded, “The defendant has been given a reasonable amount of time to prepare” and ordered the trial to begin with jury selection on April 15.
At the end of the hearing, Trump’s attorney asked to file a motion to delay the trial because of pretrial publicity. The court said it would allow the motion and give DANY one week to respond, before concluding with, “That’s fine. See you all on the 15th.”
8. Didn’t a former prosecutor quit the case and criticize it?
Justice Merchan’s ruling on the motions to dismiss was also notable because it resolved legal questions that had been raised by a former prosecutor on the case after he resigned.
- In a book he released just weeks before the indictment, Former Special Assistant District Attorney Mark Pomerantz questioned whether felony falsifying business records charges could be supported by an intent to commit other crimes. Pomerantz, who had not worked at DANY prior to this case, helped lead the investigation into Trump until early 2023, an investigation he referred to as “the Zombie case” because it “opened and shut so many times.”
- According to Pomerantz, DANY’s concern was the theory of criminality relied on untested legal strategies—creating a “gnarly legal question” about whether the court would dismiss the charges on a technicality.
- Pomerantz’s “zombie” comment has been cited “countless” times by the defense, including in support of Trump’s now rejected argument that DANY has failed to establish predicate crimes necessary to bring felony charges. DA Bragg, commentators including one of the authors of this essay, and now Justice Merchan have strongly disagreed.
- The judge dismissed Trump’s arguments that the prosecution failed to establish an intent to commit violations of state and federal law in recognizing three object crimes, federal campaign finance law, state election law and state tax law.
- In denying Trump’s motions to dismiss, Justice Merchan also rejected efforts to utilize the Pomerantz book to argue selective prosecution.
- The court noted that in pressing this argument, Trump had “relie[d] primarily on the comments of” Pomerantz to establish that his book had pressured Bragg to bring a “zombie case.” The court made short shrift of the allegation as “strain[ing] credulity.” DANY’s own opposition (pp. 52-55), surreply (pp. 3-4) and public statements to the allegation have made clear that prior to 2023, at the time Pomerantz was adamant that DANY bring charges, the case was not ready. “I bring hard cases when they are ready,” DA Bragg said in retort to Pomerantz’s book.
- Pomerantz himself later said that there was “nothing in this book that should prejudice this prosecution. The book has nothing to do with the facts and the law on which a case has to be decided. So, the book is meaningless—it doesn’t provide any kind of defense.”
THE JUDGE, THE LAWYERS AND THE COURTHOUSE
9. Who is Justice Merchan?
Juan Manuel Merchan is an acting New York Supreme Court justice who is presiding over the case.[3] Merchan was born in Bogotá, Colombia and moved to Queens, New York at the age of six. He graduated from Baruch College with a business degree in 1990, and later Hofstra University, where he earned his law degree in 1994. Merchan began his legal career as an assistant district attorney in Manhattan specializing in financial fraud cases. Five years later, he started working in the state attorney general’s office. In 2006 Mayor Michael Bloomberg appointed Merchan to be a family court judge in the Bronx. In 2009, he was promoted to his current position as an acting State Supreme Court justice. Merchan often takes on financial cases and oversees a Manhattan mental health court where he has given defendants the opportunity to seek treatment with supervision rather than serving prison sentences.
Merchan has been involved in several high-profile cases during his tenure as a New York Supreme Court justice. Most recently, he presided over the Trump Organization’s criminal tax fraud jury trial in which the company was found guilty on 17 counts and fined $1.6 million. During that case, he accepted finance chief Allen Weisselberg’s guilty plea and sentenced him to 5 months in jail in exchange for his testimony against the Trump Organization. Other notable trials that Merchan has presided over include the “Soccer Mom Madam” case, in which a suburban mom ran a call girl ring for wealthy New Yorkers on the Upper East Side, as well as a high-profile case in which a man raped and murdered his ex-girlfriend because, according to him, he was cursed by a witch doctor.
Colleagues of Merchan describe him as a fair, thoughtful, and no-nonsense judge who maintains control of his courtroom. Manhattan defense attorney Ron Kuby called him “a serious jurist, smart and even tempered.” And Nicholas Gravante Jr, Weisselberg’s lawyer in the Trump Organization tax fraud case, said Merchan “was mindful of the role my colleagues and I played as advocates, treating us with the utmost respect both in open court and behind closed doors.” He went on to characterize Merchan as “practical, efficient, a real ‘listener,’ well-prepared and a man who kept his word.”
Pretrial proceedings thus far reveal Merchan’s skepticism toward some of the Trump team’s arguments. At a hearing in mid-February, Merchan promptly denied Trump’s motions to dismiss the case and scheduled jury selection to begin on March 25th. Trump’s lawyer Todd Blanche protested saying, “the fact that President Trump is now going to spend the next two months working on this trial instead of campaigning is something that shouldn’t happen in this country” to which Merchan asked, “What’s your legal argument? That is not a legal argument.”
10. Who are the lawyers?
Bragg has assembled a team of “young lawyers and veterans, career officials and longtime criminal defense attorneys who recently returned to government work.” The team was built over time with intention, boasting a breadth of knowledge, expertise, and practical experience relevant to the case, especially fraud and white-collar crimes. They will be matched by a formidable defense team as well. Trump is being represented by highly-skilled courtroom advocates: former prosecutors with experience defending complex and high-profile criminal cases.
Bios are provided in Questions 11 and 12 below. Before turning to that we should note that although both sets of lawyers are impressive, we do have some indication of what their face off may produce. Bragg and several of his assistant district attorneys, some of whom are on this current trial team, already successfully secured convictions on all charges brought against two Trump Organization companies represented by some of the defense lawyers in this case. Those convictions (discussed in more detail in Question 24) involved matters factually and legally somewhat similar to the present case—namely criminal tax fraud and falsifying business records. Specifically, prosecutors proved a scheme that Trump “explicitly sanctioned” in which high-level executives were awarded “with lavish perks and compensation while intentionally concealing the benefits from the taxing authorities to avoid paying taxes.” Part of that investigation also saw Bragg’s team secure a plea deal with Trump Organization CFO Allen Weisselberg for receiving $1.7 million in perks not declared to tax authorities. (Weisselberg has since pleaded guilty to perjury in connection with his later testimony in Trump’s New York civil fraud case.)
11. Who is on the Prosecution Team?
Alvin L. Bragg is the 37th Manhattan District Attorney. Elected in November 2021, he is a Democrat and the first Black person to lead the Manhattan District Attorney’s office. Before that, he had a distinguished career as a federal prosecutor and deputy New York Attorney General.
Bragg’s early life was spent in Harlem, New York, where he was born to a social services worker and a teacher. His educational journey took him to Harvard for both his undergraduate and law degrees, where he emerged as a leader among his peers and contemplated a career in prosecution after observing its impact during his work with a federal judge.
His path to becoming Manhattan District Attorney involved defeating eight other candidates on a progressive platform. Bragg’s campaign and policy positions resonated with the progressive prosecutorial movement that seeks to reform the criminal justice system by reducing reliance on incarceration for minor offenses and investing in communities to increase public safety. Despite his progressive stance, Bragg’s nuanced policies, informed by his experiences growing up in Harlem, defy simple categorization.
Upon assuming office, Bragg faced immediate challenges and controversies, particularly related to his policy of seeking jail time only for the most serious offenses and his initial hesitance in the Trump investigation. However, he maintained that the investigation into Trump’s activities was ongoing, focusing on hush-money payments and tax fraud involving Trump’s company and CFO Weisselberg.
Bragg has brought together an experienced team of assistant and executive district attorneys to prosecute the case. This team, drawn from diverse legal backgrounds, includes specialists in white-collar-crime and fraud cases.
- Susan Hoffinger, the Executive Assistant District Attorney and Chief of the Investigation Division, boasts a robust history in white-collar criminal cases, both in prosecution and defense. She is a “leader on the team” and has previously worked on significant tax fraud, securities fraud, and other financial misconduct cases, including co-leading DANY’s prosecution of Trump’s business.
- Christopher Conroy, with 27 years at the Manhattan DA’s office, brings experience from his time in DANY’s Frauds and Major Economic Crimes Bureaus, and former Chief of the Investigations Division under Bragg’s predecessor, having overseen major cases involving U.S. sanctions violations and falsification of business records. He has been assigned to the case longer than any other team member.
- Joshua Steinglass, a 25-year DANY veteran, is one of Bragg’s “most experienced trial lawyers.” He is currently Bragg’s Senior Trial Counsel on the case as he was in DANY’s case against the Trump Organization, alongside Hoffinger and others. As Assistant DA he prosecuted members of the Proud Boys for attacking protesters outside the Metropolitan Republican Club in Manhattan as well as leading on the investigation into NY subway homicide of Jordan Neely. Steinglass has already developed a reputation in the case against Trump as one who plays no games, a “fiery” advocate in court, willing to “fiercely” argue the state’s case.
- Matthew Colangelo, Senior Counsel, has a career that spans law, government and the public interest sector with roles in the NAACP Legal Defense & Educational Fund and the Department of Justice. He joined the team at the end of 2022, bringing a “wealth of economic justice experience combined with complex white-collar investigations,” and prior to serving as DOJ acting associate attorney general, he led the New York Attorney’s General civil inquiry into Trump.
- Rebecca Mangold, an Assistant District Attorney in the Major Economic Crimes Bureau, comes from a private law background with significant experience in financial fraud investigations. She led negotiations with UBS Real Estate Securities Inc. and Bank of America, resulting in the recovery of $850 million for investors related to the subprime mortgage crisis. She joined DANY in 2022 after years in private practice. She clerked in the District of New Jersey from 2011 to 2013.
12. Who is on the Trump Defense Team?
Trump’s defense team is headed by Todd Blanche and Susan Necheles.
Todd Blanche is a prominent attorney known for representing high-profile clients. He has a background as a federal prosecutor and a distinguished career in white-collar criminal defense and has been involved in significant legal battles. He has played a central role in Trump’s legal team since April 2023: during the former president’s arraignment on federal charges related to the mishandling of classified documents, as co-counsel in the Jan. 6 federal case, and is also “the maestro of the defense team” preparing for the Bragg trial.
Before joining Trump’s legal team, Blanche served as an assistant U.S. attorney in the Southern District of New York for close to a decade, where he honed his skills in prosecuting complex cases. His worked at Cadwalader, Wickersham & Taft, an elite New York law firm, departing to focus on representing Trump in the Bragg case. Blanche also represented Paul Manafort, Trump’s 2016 presidential campaign manager, and Igor Fruman, an associate of former Trump personal lawyer Rudy Giuliani.
Susan Necheles is recognized as one of New York’s elite lawyers, representing individuals and corporations across a breadth of government and regulatory investigations as well as at trial. She is a former Assistant District Attorney in Kings County, New York, and served as the President of the New York Council of Defense Lawyers. A registered Democrat as of 2023, Necheles has played a key role in defending Trump and his businesses. She co-led the defense of the Trump Organization in DA Bragg’s 2022 prosecution (with heated exchanges with Assistant DA Steinglass), and her firm received $465,000 from Trump’s PAC in the first six months of 2023.
Necheles is an “understated tactician,” and her role in the instant case has been described as the “research person.” But she will likely play a key role in advancing the defense case at trial. In the late 1990s, she was counsel to the late Venero Mangano, also known as “Benny Eggs,” the underboss of the Genovese crime family. In 2010 she represented New York state Senate Majority leader Pedro Espada (D) in a corruption case that former New York Gov. Andrew Cuomo called “the most outrageous abuse of public office I have ever seen.” More recently she represented Jeremy Reichberg, a former fundraiser for Mayor Bill de Blasio of New York, who was convicted of bribing New York Police Department officials.
13. Can the public watch?
Like with all criminal trials, and as guaranteed by the Constitution, the court is open to the public. However, the trial will not be televised, as New York prohibits audio-visual coverage of trials and other court proceedings that involve witness testimony.
The trial will occur at the New York County Supreme Court courthouse, at 100 Centre Street, courtroom 59, located on the 15th floor. The trial will be open to the public, including jury selection. Due to limited space, the court used overflow courtrooms for earlier proceedings where people could watch remotely. Expect the court to do the same for trial.
14. How does the press get access to the court?
To be eligible to receive a temporary press credential, an applicant must be a member of the media who will be covering the trial, in person, either for the duration or on a day-by-day basis.
Applicants need to submit a copy of a valid U.S. Government-issued photo ID along with a letter, on letterhead, from the organization where the coverage will appear. Freelance reporters must have the accredited news organization or agency affirmatively ensure that they are employing the applicant to cover the trial. The letter along with a legible copy of the valid ID may be scanned and emailed to publicinformation@nycourts.gov.
Members of the media who already possess a valid NYPD Working Press Card with their photo on it, not a reserve/pool card, or a New York State Unified Court System SECURE Pass, do not need to apply for this card.
Use of laptops, tablets, iPads, iPhones, and the like inside the courtroom during the trial is at the sole discretion of the presiding judge.
VENUE
15. Will Trump try to move the trial to a different county in New York?
Trump’s attorney Blanche has signaled that the defense intends to ask for a change of venue, citing jury fairness concerns. Under New York Criminal Procedure Law (NY CPL) § 230.20, the appellate division (not the trial court) hears and decides a motion to change venue. This is rarely granted, especially when much of the press coverage is caused by the defendant himself.
16. What happens if there is a change of venue?
Under NY CPL § 230.20, there are two options. One is for the trial to be sent to another court in another county. The other option is that the trial stays in the current county but the jury pool is expanded to include jurors from contiguous counties. In choosing between the two options, the appellate court “shall consider, among other factors, the hardship on potential jurors and the potential depletion of a county’s qualified juror list that may result from an order expanding the jury pool.”
17. What’s the legal standard?
To grant a venue change, the appellate court must be satisfied that there is “reasonable cause to believe that a fair and impartial trial cannot be had” in the county where the case is pending.
A “pretrial change of venue for the purpose of protecting the right to a fair trial is an extraordinary remedy reserved for the rarest of cases.” People v. Boss, 261 A.D.2d 1, 701 N.Y.S.2d 342 (N.Y. App. Div. 1999). “[S]ubstantial foundation…must be laid in order for the motion to be successful.” McKinney, NY CPL § 230.20.
Motions to change venue often focus on the jury pool, arguing that the publicity in the case would cause the defendant to have an unfair trial. Essentially, the issue is “whether the jury panel was unduly tainted as a consequence of a barrage of publicity such that the jurors could not fairly deliberate on the question of the defendant’s guilt.” McKinney, NY CPL § 230.20. Changing venue “is a means of preventing” a trial from being “dominated by a ‘wave of public passion’ (Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 6 L.Ed.2d 751),…overwhelmed by press coverage (Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 44 L.Ed.2d 589),…conducted in a ‘carnival atmosphere’ (Sheppard v. Maxwell, 384 U.S. 333, 338, 86 S.Ct. 1507, 16 L.Ed.2d 600).” People v. Boss, 261 A.D.2d 1, 701 N.Y.S.2d 342 (N.Y. App. Div. 1999).
There is “no bright-line test which requires change of venue based solely on fact that fixed percentage of veniremen have expressed preconceived opinion about [the] case; rather, what is required is examination of totality of circumstances to determine whether pretrial publicity has so permeated community as to render it impossible to obtain fair and impartial trial.” McKinney, NY CPL § 230.20 citing People v. Ryan, 151 A.D.2d 528, 542 N.Y.S.2d 665 (N.Y. App. Div. 1989).
Relevant considerations are whether the publicity is accurate as to the facts or instead of such a “sensational character as to excite local popular passion and prejudice.” McKinney, NY CPL § 230.20. With a change of venue motion in mind, during voir dire defense counsel should “specifically inquire [of jurors] about what they learned about the case from the media, when they learned about the case and whether those reports influenced the jurors’ opinions about the case.” Id. Defense counsel will likely ask the court for individualized questioning of prospective jurors. Id.
In this case, there will be an issue as to whether any unfairness allegedly caused to Trump by pretrial publicity can be mitigated by a change of venue. There is a strong public policy however not to incentivize a defendant to forum shop by causing the very publicity he is complaining about. Additionally, it is unlikely that jurors in other boroughs have heard about Trump less, given the global nature of the coverage.
18. Can Trump change the venue by claiming that Justice Merchan is biased?
Probably not. Judicial bias can be used to support a motion for a change of venue, and courts have identified the lack of judicial bias as a reason for denying a change. See People v. McClary, 150 A.D.2d 631 (N.Y. App. Div. 1989). However, for a party claiming judicial bias, the “correct procedure to obtain relief sought would be for [the] defendant to move for [the] trial judge to disqualify himself. People v Blake, 133 A.D.2d 549, 520 N.Y.S.2d 92, 1987 N.Y. App. Div. LEXIS 50085 (N.Y. App. Div. 4th Dep’t 1987).” McKinney, NY CPL § 230.20.
19. When does Trump need to file a motion to change venue?
Typically a party will move to change venue based on juror fairness after jury selection. A party can try to change venue before jury selection, but pre-voir dire motions are very difficult to win. They are “almost never granted[;] the motion bears a significantly heavy burden.” McKinney, NY CPL § 230.20. The publicity must have created “a deep and abiding resentment” in the county in which the prosecution is pending. People v. Boudin, 90 A.D.2d 253, 457 N.Y.S.2d 302 (N.Y. App. Div. 1982). Usually, a defendant seeking a change of venue will use the jury selection process to build an evidentiary record to show that he cannot obtain a fair trial.
Trump may file a motion to change venue before jury selection and then, if the court denies the motion, renew the motion after jury selection using examples from the selection process to support his motion.
20. Will the trial be stayed while Trump seeks a venue change?
Not automatically. But under NY CPL § 230.30(1), Merchan “may, in his discretion and for good cause shown, order that the trial…be stayed” for no longer than 30 days “from the issuance of such order.” “Such an order may be issued only upon an application made in writing and after reasonable notice and opportunity to be heard has been accorded the other party.” NY CPL § 230.30(2). If Merchan denied the application, Trump could not renew his application “to any other such justice.”
If Merchan did order a stay, “no further proceedings may be had” before him until Trump’s motion is determined by the appellate division or if Trump fails to file a motion by the deadline. NY CPL § 230.30(2).
OTHER PRETRIAL MATTERS
21. Is there a gag order in place?
Yes. On March 26, 2024, the court imposed a narrowly-tailored gag order that prohibits Trump from making or directing others to make public statements about witnesses, counsel other than DA Bragg or their families, court staff or their families, and jurors. The language of the gag order closely tracks the language adopted by the DC Circuit in the January 6th case, here with the additional protection for jurors.
The court’s order granted in substantial part a pretrial motion filed by DANY in February 2024, which contended that Trump’s “[a]dvocacy of revenge and retribution against perceived opponents” justifies” such an order. The motion cataloged Trump’s long history of verbally attacking people involved in legal proceedings against him and his allies, offering examples from this case, the D.C. federal criminal prosecution, the Georgia state prosecution, the NY civil fraud case, and the prosecution of Roger Stone.
In granting the motion, Justice Merchan rejected Trump’s argument that as the presumptive Republican nominee for president, he needs to be able to respond to political attacks and “criticize these public figures.” The judge found that Trump’s history of extrajudicial statements “went far beyond defending himself against ‘attacks’ by ‘public figures,’” and included “threatening, inflammatory, denigrating” statements targeting local officials, prosecutors, court staff, and juror “performing their civic duty.” The court concluded that these types of statements “undoubtedly risk impeding the orderly administration” of the court, with no less restrictive means to guard against that risk short of a limited gag order.
The court’s order is consistent with New York and U.S. Supreme Court law, which in order to protect the administration of justice, allow a court to restrict a party’s extrajudicial speech that is “substantially likely to have a materially prejudicial effect” or that presents a “’reasonable likelihood’ of a serious and imminent threat” to the integrity of the trial.
In Trump’s New York civil fraud trial, Manhattan Supreme Court Justice Arthur Engoron implemented a narrow gag order prohibiting Trump from commenting about court staff in response to the ex-president’s repeated criticisms of one of Engoron’s clerks. A New York appellate court upheld the decision. In the D.C. prosecution, the federal appellate court largely upheld district court Judge Tanya Chutkan’s gag order prohibiting Trump from comments about known witnesses.
The March 26 order compliments a protective order from May 2023 in which Justice Merchan granted DANY’s motion to prohibit Trump from disclosing on social media any discovery the defense received from the prosecution as well as barring disclosure of names and identifying information of DANY’s personnel, other than sworn member of law enforcement, assistant district attorneys and expert and fact witnesses (other than summary witnesses).
22. What motions in limine did the parties file, and how did the court rule?
Both parties filed on February 22, 2024 a series of motions in limine, the purpose of which is to address evidentiary issues and other trial logistics in advance of trial. The parties filed their opposition briefs on February 29. On March 18, the court granted most of DANY’s motions and denied most of Trump’s. As one of the coauthors of this Guide described, the rulings were a “disaster for Trump and a home run for the DA” and “[p]robably a signal that trial will proceed in April.”
Below we summarize each of the filings and the court’s decisions.
a. State of New York’s motions in limine, Trump’s Opposition, and the court’s rulings
DANY filed eight motions in limine, which we’ve grouped into three categories.
Category 1: Exclude specific evidence and witnesses (4 motions)
- DANY moved to exclude testimony from Bradley Smith, a former Federal Election Commissioner, about federal election law, including whether the hush money payments would have violated federal election law. Expert testimony is admissible to help juries understand facts but not the law; the judge has the exclusive authority to explain the law. Legal experts are usually disallowed for that reason. In response, Trump claimed Smith will testify as a regulatory expert to help the jury understand the framework of election law. But Trump’s response acknowledged that Smith will offer his opinion about Trump’s good faith belief that the ex-President was in compliance with FECA. Experts are generally prohibited from testifying as to the state of the defendant’s mind and whether he had the requisite intent, as those are ultimate questions of fact for the jury to decide.
- The court granted in part this motion, agreeing that Smith could not testify about the meaning of federal campaign finance law or whether the alleged conduct constitutes a FECA violation. The court will allow Smith to testify to background information about the Federal Election Commission, including its function, mission, and the generally accepted definition of terms related to this case, including “campaign contribution.” In its order, the court warned that it “will monitor this testimony closely to ensure full compliance. Any deviation from this ruling could result in sanctions up to and including the striking of the expert’s entire testimony.”
- DANY filed two motions that sought to exclude evidence respectively about the Federal Election Commission dismissing complaints against Trump and about the Department of Justice declining to file charges against Trump. Decisions by other civil and criminal agencies about whether to file charges or lawsuits are generally inadmissible because they reflect opinions and legal conclusions based on different (albeit perhaps similar) sets of facts and laws. In response, Trump said he did not intend to offer these unless DANY offers Cohen’s and AMI’s agreements with prosecutors (discussed below).
- The court granted this motion, writing these decisions are “probative of nothing” and therefore irrelevant, as there are “countless reasons why the FEC and DOJ could have decided not to pursue enforcement against Defendant, all having nothing to do with whether he is guilty of the charges here against him.”
- DANY sought to exclude evidence of other prosecutors’ statements about Michael Cohen’s credibility. DANY was required to disclose these statements to the defense as part of its discovery obligations, but other people’s views of a witness’s credibility are generally inadmissible. In response, Trump claimed he is entitled to cross Cohen about his lies and inconsistencies, including comments made by federal prosecutors about his lack of truthfulness.
- The court granted the motion, ruling that it is improper to “impeach witnesses through inadmissible hearsay such as the opinions of federal prosecutors.” Because it is always permissible to challenge credibility, the court expressly said it would allow “appropriate, good faith impeachment.”
Category 2: Exclude improper legal arguments and supporting evidence (3 motions)
- DANY moved to exclude evidence in support of legal arguments that the court already denied, specifically those raised in Trump’s motions to dismiss. Because the court has rejected these legal arguments, any evidence in support would likely be irrelevant and inadmissible. Trump, in response, said the court had not ruled on the admissibility of those defenses and claimed a broad but vague right to cross-examine witnesses about issues dealt with in the court’s prior rulings.
- The court granted the motion, precluding Trump from rearguing matters already ruled on raised in his motions to dismiss, including (1) alleged delay in bringing charges; (2) a federal offense is a valid object crime for first degree falsification of business records; (3) NY election law applies to the charged conduct; (4) improper prosecutorial motivation; (5) there was no violation of the statute of limitations; and (6) there were no violations of grand jury secrecy.
- Similarly, DANY filed a motion specifically addressing evidence of selective prosecution in light of Trump’s frequent public comments complaining that he has been treated unfairly. The Court already rejected this defense as without merit, and any testimony or evidence suggesting selective prosecution would be inadmissible and may improperly suggest a jury nullification argument. In response, Trump said he did not intend to raise this defense but is allowed to introduce evidence suggesting the investigation was “shoddy.”
- The court found the issue to be moot because Trump stated he does not intend to argue selective prosecution to the jury. However, the court clarified that Trump is precluded from making arguments or introducing evidence about the indictment being novel, unusual, or unprecedented; pretrial delay; prosecutorial motivations; alleged bias of the judge or court staff; or Pomerantz’s views of the case. And the court warned that it “will closely monitor any attempts to circumvent” the court’s ruling.
- DANY moved to preclude Trump from improperly raising an advice-of-counsel defense through the testimony of Trump Organization Chief Legal Officer Alan Garten before establishing the legal prerequisites. An advice-of-counsel defense requires that the defendant honestly and in good faith (1) sought legal advice; (2) gave the relevant information to his attorney(s); and (3) followed that advice. As discussed in detail at Question 45, Trump took the position that he would not assert a “formal advice-of-counsel” but would “elicit evidence concerning the presence, involvement and advice of lawyers.”
- The court granted the motion, finding that Trump waived the defense and would not allow his “amorphous defense of ‘presence of counsel’”—which is “the very defense he has declared he will not rely upon.”
Category 3: Prior bad acts
DANY sought pretrial determinations to admit three different types of evidence of Trump’s prior bad acts. Evidence of prior bad acts is referred to as “Molineux” in New York or “404(b)” in federal court (after the corresponding New York case and Federal Rule of Evidence, respectively). It is generally inadmissible to establish a defendant’s bad character or criminal propensity. For example, in a case involving a traffic accident, evidence that the defendant received speeding tickets in the past would be inadmissible to suggest that the defendant was speeding at the time of the accident. Also, in a case involving a traffic accident, evidence that the defendant previously battered his wife would also be inadmissible because it is irrelevant to the accident and would be offered only to suggest the defendant is a bad person.
However, prior bad acts evidence is generally admissible to show a defendant’s motive, intent, plan, etc. Also, evidence of prior bad acts is generally admissible where those acts are inextricably interwoven with the crime and therefore part of the factual background to help the jury understand what happened (as opposed to telling the jury what the defendant has done in the past).
The three types of bad acts evidence DANY intends to introduce are:
- Evidence regarding the “catch and kill” scheme, including payments made to Daniels, and two others. They are Dino Sajudin, the doorman who allegedly tried to sell a now debunked story about Trump fathering a child out of wedlock, and Karen McDougal, the former Playboy model who allegedly sold her story of an affair with Trump. DANY also alleges that these acts, as well as AMI’s publication of negative stories about Trump’s opponents, should be considered part of the same overall scheme and are therefore admissible.
- The court agreed with DANY, finding this evidence to be “inextricably interwoven with the narrative of events, that is, the steps that eventually led to the purchasing of information from, among others, Daniels.” However, the court excluded one piece of evidence, finding that DANY can introduce evidence related to a $50,000 reimbursement to Cohen for a campaign-related expense but cannot elicit that the purpose of that expense was to “rig an online poll,” as that evidence is unnecessarily prejudicial.
- The Access Hollywood tape and the public allegations of sexual assault that followed. DANY argued that the tape is evidence of Trump’s intent and motive—which make it admissible as Molineaux. Specifically, the tape and related facts can show Trump’s deep concern about potential harm to his standing with female voters that allegedly motivated his hush money payment scheme and the falsification of business records to conceal it. Trump claimed the tape and hearsay evidence of sexual assault allegations by three women are irrelevant and unfairly prejudicial.
- The court ruled that the facts underlying the Access Hollywood tape are admissible as they relate to Trumps’ “intent and motive for making the payment to Daniels and then, attempting to conceal them.” However, the court ruled that to avoid undue prejudice, the tape itself should not be played or admitted—just testimony about the interview that was caught on tape.
- The court reserved ruling on the admissibility of the allegations of assault that followed, pending DANY making a further offer of proof so the court is in a “better position to properly analyze” that evidence.
- Evidence that Trump discouraged witnesses from cooperating with law enforcement, which DANY argued demonstrates his consciousness of guilt. In response, Trump objected to this evidence as irrelevant and unfairly prejudicial. He also said the court should not determine the admissibility of any such evidence in advance of trial in a blanket pretrial ruling but rather based on the specific evidence sought to be introduced at the time DANY offers it.
- The court explained, “attempting to threaten witnesses, imploring them to testify falsely and offering money to change their testimony could certainly be probative of consciousness of guilt,” but it reserved ruling on the motion until it can review the specific evidence being offered.
b. Trump’s motions in limine, DANY’s opposition, and the court’s ruling
Trump made 16 motions in limine, which we’ve grouped into three categories.
Category 1: Exclude specific evidence and witnesses (10 motions)
- Trump sought to block Michael Cohen from testifying, arguing that he’s an admitted perjurer who is inherently unreliable.
- The court denied the motion, explaining there is no basis for excluding a witness because his credibility has been challenged. Credibility is different from admissibility, and the jury will determine whether Cohen is to be believed.
- Trump tried to block Stormy Daniels from testifying, claiming that her story is not relevant, and that she has been inconsistent in her statements.
- The court denied the motion, explaining that Daniels’ role “not only completes the narrative of events that precipitated the falsification of business records but is also probative of the Defendant’s intent.” The court granted Trump’s motion to preclude the results of any polygraph tests taken by Daniels.
- Trump filed separate motions to preclude any evidence from or about Dino Sajudin and Karen McDougal, claiming they lack “meaningful similarity” to the charged crimes. However, the Statement of Facts discusses both as examples of the catch & kill scheme, and as DANY argued there is likely sufficient evidence for a jury to conclude that the payments to Sajudin and McDougal were related to the payments to Daniels that underlie the charges and are part of the same common scheme or plan, as permissible Molineux evidence.
- The court denied the motions, finding “the steps taken to secure the stories of Sajudin and McDougal complete the narrative of the [‘catch and kill’] agreement.” But the court found that testimony from or about Sajudin and McDougal must be limited to the “fact of” what happened and not get into the “underlying details of what allegedly transpired between those individuals and the Defendant.”
- Trump wanted to block the Access Hollywood tape as irrelevant and unduly prejudicial. As noted above, DANY filed a motion to admit the tape because it provides context for why Trump was concerned about news leaking of the Daniels affair and his motivation to conceal it.
- As discussed above in the context of DANY’s motion to allow this evidence, the court ruled that testimony about the interview caught on tape is admissible but the tape itself is not.
- Trump tried to preclude evidence of the “catch and kill” agreement that dates back to 2015 along with use of the phrase “catch and kill” as inherently pejorative. But as DANY argued, there is nothing unfairly prejudicial about the phrase, which is used as a term of art within the tabloid publishing industry.
- The court denied the motion, finding that the background of the agreement is relevant to the charges.
- Trump wanted to preclude statements made by Rudy Giuliani discussing what Trump knew about the hush money scheme, arguing that Giuliani was not Trump’s authorized agent at the time, as required for admission of those out-of-court statements. In response, DANY said it does not intend to admit any statements from Giuliani.
- In light of DANY’s representations, the court found the motion moot and did not rule on it.
- Trump sought to block the prosecution from using Cohen’s plea agreement or AMI’s non-prosecution agreement as evidence of violations of the Federal Election Campaign Act. In response, DANY explained that the agreements are admissible for credibility reasons, whether introduced by the defense or prosecution, and to explain Cohen and Pecker’s firsthand knowledge of facts to which they testify.
- The court granted the motion to the limited extent of precluding DANY from arguing that these agreements are probative of Trump’s guilt but will allow DANY to introduce them to establish the underlying facts of the agreements.
- Trump wanted to block the admission of notes supposedly made by Trump Organization CFO Allen Weisselberg in January 2017 without first establishing that the notes were in fact made by Weisselberg and are otherwise admissible. DANY contended the notes are admissible as business records, and the prosecution will establish at trial the foundation to establish they are business records.
- The court explained that the notes are likely admissible so long as DANY establishes that they are business records, but it reserved ruling on the motion at this time.
- Trump asked to preclude evidence about the false entries in AMI’s corporate books on the basis that the court already ruled that the falsification of AMI’s records cannot serve as one of the object crimes of intent. As DANY pointed out, however, the court’s ruling on the motion to dismiss expressly contemplated that the prosecution could introduce evidence of false records (by Cohen or AMI) as evidence of intent to commit/aid/conceal one of the other three object crimes.
- The court denied the motion, permitting DANY to introduce this as evidence in support of any of the three permissible theories of intent to commit another crime.
Category 2: Exclude evidence and argument about Trump’s intent to defraud (3 motions) and about what entity constitutes the “enterprise” for under the definition of business records (1 motion)
Trump made three motions aimed at limiting or blocking how DANY can establish Trump’s intent to defraud. For example, Trump claimed that DANY is not allowed to argue that Trump’s attempt to prevent the public disclosure of damaging information constitutes fraud. The court denied these motions as “nothing more than a motion to reargue disguised as a motion in limine.” It also criticized Trump’s attempt to reargue these motions as “procedurally and professionally inappropriate and a waste of this Court’s valuable resources.”
Trump also moved to preclude DANY from offering evidence and argument that records from Trump personally or the Trump Revocable Trust constitute records of a business “enterprise.” As discussed at Question 6, and as DANY pointed out in its opposition, the court “squarely rejected” this argument in his motions to dismiss. The court agreed, denying the motion and cautioning Trump not to raise this argument to the jury.
Category 3: Housekeeping (2 motions)
Trump made two housekeeping motions. The first sought to require DANY to prove the admissibility of 94 statements attributed to Trump in books, interviews, and social media posts. DANY pointed out that Trump’s statements are admissions of a party opponent, and there is no reason for a pretrial hearing on their admissibility; the court can rule as each is introduced during trial. The court agreed, denying the motion and explaining that, as with all evidence, DANY will be required to lay the proper foundation before introducing any of these statements.
Second, Trump asked for the court to order DANY to provide an updated and pared-down exhibit list, claiming that the current list was in a “state of disarray.” DANY responded that it had complied with its obligations and that any confusion or disorganization was a result of Trump’s own doing. The court accepted DANY’s representations and directed it to continue complying with their discovery obligations.
23. What discovery has Trump turned over?
The authors have been unable to discern from the public record whether any such production has been made (as of this writing).[4] But the production of discovery would not necessarily be public. The rules of procedure require Trump, like any criminal defendant, to produce essentially all relevant evidence in his possession, including expert opinion evidence; tapes and electronic recordings; photographs and drawings; reports and data concerning physical or mental examinations of any witness; witness inducements; physical evidence; and any witness statements.
24. Does the criminal trial of the Trump Organization business offer any insight into this case?
DANY’s 2021 indictment and subsequent conviction of two Trump Organization entities and Allen Weisselberg for, inter alia, conspiracy, scheme to defraud, grand larceny, tax fraud, and falsifying records provides some useful context for the upcoming trial.
At the heart of the prosecution of the Trump Payroll Corp. and the Trump Organization was whether the corporations were criminally responsible for a 13-year “sophisticated tax fraud scheme” in which Weisselberg and other high-level executives were awarded off-the-books perks and compensation to intentionally conceal information from tax authorities and avoid paying taxes. A critical issue was whether the prosecution could prove beyond a reasonable doubt that executives had carried out criminal acts “in behalf of” the corporations.
The five-week trial saw the prosecution and defense agree that Trump Organization “employees had engaged in a lucrative tax fraud scheme…but dr[ew] diametrically opposed conclusions about whether their actions implicated the Trump Organization itself.” The prosecution case focused on proving that Weisselberg (and others, including controller Jeffrey McConney) were “high managerial” agents “acting within the scope of their employment” on behalf of the Trump Organization and its many entities. Additionally, the prosecution contended they were also acting “in behalf of the corporations”—amid a corporate environment in which Trump “explicitly sanctioned” tax fraud to the intentional benefit of others.
In contrast, the defense argued that Weisselberg was a rogue actor who had not acted “in behalf” of the Trump Organization but was instead motivated ”solely” by personal gain and greed. They argued, “Weisselberg did it for Weisselberg,” and thus the prosecution had failed to establish, as Merchan had required necessary, that “there was some intent to benefit the corporation.”
Closing arguments lasted two days and mirrored many of the themes throughout trial, particularly on whether Weisselberg had acted with the intent to, at least in part, benefit the Trump Organization. During his three days on the stand, Weisselberg admitted that both he and McConney knew that reductions in salaries via unreported perks would benefit the Trump Organization by lowering its payroll tax obligation, although he testified they never explicitly discussed it—and each side dissected that testimony during summation to make their respective cases.
The jury deliberated for 10 hours before finding the corporations guilty on all 17 counts. At the time of conviction, Bragg said that his successful case against the Trump Organization was only “a chapter”—“[a] case against the corporations”—in his ongoing investigations into Trump’s business practices in New York.
This next chapter, while distinct from the 2022 trial, will likely see several similarities, including some of the same lawyers leading the case for each side; Merchan’s acumen for dealing with complex financial issues and not allowing the defense to confuse the jury on the law or shoehorn inadmissible evidence into the case; battles over the meaning of essential elements of the charged crimes and whether Cohen was acting for Trump or gong rogue; and if there’s a conviction, Merchan weighing prosecutors’ recommended sentence.
JURY SELECTION
25. Why is this a jury trial?
Under NY CPL, a criminal defendant has a right to a jury trial for all felonies and certain classes of misdemeanors. Trump is charged with 34 felonies and therefore has a right to a jury trial. A defendant can waive his right to a jury trial (except for first-degree murder) and have the judge serve as the factfinder (called a “bench trial”), so long as the waiver is in writing and signed by the defendant in open court with the court’s approval. NY CPL § 320.10. Trump has not elected and is not expected to elect to have a bench trial.
26. How many jurors will there be?
In New York, a trial jury consists of twelve jurors, but the court may choose to additionally select and swear up to six alternate jurors. Alternates are selected in case a regular juror is discharged or excused and thus will sit and hear evidence like regular jurors, though will not be involved in deliberations. They must also be drawn in the same manner as regular jurors, they must have the same qualifications (see Question 27), and must be subject to the same examination and challenges (see Question 29). NY CPL § 270.30.
27. Who can sit as a juror?
To qualify as a juror a person must be a U.S. citizen and resident, a resident of Manhattan, at least 18 years old, be able to understand and communicate in the English language, and have no felony convictions. These are referred to as the “juror qualifications.”
28. Who is in the jury pool?
The jury pool consists of adult residents of New York County (total population: 1.69 million recorded in the 2020 Census) who meet the juror qualifications.
According to the U.S. Census Bureau, the county is 52.2% female; 45.5% white (non-Hispanic/Latino); 26.2% Hispanic/Latino; 18.7% Black or African-American; 13.3% Asian; and 3.6% mixed race/ethnicity.[5]
As of February 2024, of the approximately 1.1 million registered voters (active and inactive) in New York County (Manhattan), 70.0% are registered Democratic and 7.8% Republican. In the 2020 presidential election, the county voted for Joe Biden over Trump, 86.7% to 12.3%. In the 2016 presidential election, the county voted for Hillary Clinton over Trump, 86.6% to 9.7%.
29. What is voir dire/jury selection and how does it work?
First, the judge will introduce prospective jurors to the voir dire (or jury selection) process and to the case. Next, the judge as well as parties will examine groups of prospective jurors, before parties make any objections. The process will continue until 12 jurors and up to six alternates are selected. See generally NY CPL, Article 270; McKinney, NY CPL § 270.15.
Judge’s Introductory Remarks
The judge will welcome the prospective jurors, identify the parties and their respective lawyers, and give a brief introduction to the case. NY CPL § 270.15. The judge will then explain the jurors’ role and the purpose of the selection process–to compile a panel of jurors who can be fair and impartial in evaluating the evidence and applying the law as directed by the judge. The judge will also explain to prospective jurors what the trial process involves (see these model instructions that guide judges through this process).
Questioning Prospective Jurors
The heart of jury selection is the attorneys’ questioning of the jury pool. After introductory remarks by the judge, prospective jurors will be “sworn to answer truthfully” any questions asked of them “relative to their qualifications.” Groups of at least 12 prospective jurors will be placed in the jury “box” and questioned. The court usually leads with its initial questioning before allowing a “fair opportunity” for counsel for both sides to examine prospective jurors on any “unexplored matter.” The court should not allow “repetitious or irrelevant, or questions as to a juror’s knowledge of rules of law,” and “[i]f necessary to prevent improper questioning as to any matter, the court shall personally examine the prospective jurors as to that matter. The scope of such examination shall be within the discretion of the court. After the parties have concluded their examinations of the prospective jurors, the court may ask such further questions as it deems proper.” NY CPL § 270.15(1).
Also, ”[i]n its discretion, the court may require prospective jurors to complete a questionnaire concerning their ability to serve as fair and impartial jurors, including but not limited to place of birth, current address, education, occupation, prior jury service, knowledge of, relationship to, or contact with the court, any party, witness or attorney in the action and any other fact relevant to his or her service on the jury.” Id. A questionnaire has been discussed by the judge and counsel but has not yet been agreed as of this writing.
Generally, defendants have a right to be present during questioning of prospective jurors, but (unlike during the actual trial) can freely waive this right. McKinney, NY CPL § 260.20.
Challenges to Prospective Jurors
After each group of prospective jurors have been examined, parties (starting with the state) are given the opportunity to object to certain prospective jurors: first through a “challenge for cause” and then through peremptory challenges. NY PL § 270.15(2).
Challenge for Cause
“A challenge for cause is an objection to a prospective juror and may be made only on the ground that,” in so far as is possibly applicable, 1) the juror does not have the necessary qualifications (as stated in Question 27) to be an eligible juror; or 2) the juror “has a state of mind that is likely to preclude” her “from rendering an impartial verdict based upon the evidence adduced at the trial; or 3) the juror is related to the defendant, victim, a witness, or counsel, or 4) the juror “was a witness at the preliminary examination or before the grand jury or is to be a witness at the trial.” NY CPL § 270.20(1).
With respect to a challenge for cause, “[a]ll issues of fact or law arising…must be tried and determined by the court.” If the challenge is allowed, the prospective juror must be excluded. NY CPL §§ 270.20(2) & 270.15(2). Note also that a challenge for cause must generally be made before that prospective juror is sworn in as a trial juror. If not, the defendant will be taken to have waived such challenge, unless “based upon a ground not known to the challenging party,” in which case a challenge can be made “at any time before a witness is sworn at the trial.” NY CPL § 270.15.(4).
Generally, to appeal a trial court’s erroneous denial of a party’s challenge for cause the party must have exhausted its peremptory challenges by the close of jury selection. NY § CPL 270.20(2); McKinney, NY CPL § 270.15.
“[C]hallenges for cause must be made and determined, and peremptory challenges must be made, within the courtroom but outside of the hearing of the prospective jurors in such manner as not to disclose which party made the challenge. The prospective jurors who are not excluded from service must retain their place in the jury box and must be immediately sworn as trial jurors. They must be sworn to try the action in a just and impartial manner, to the best of their judgment, and to render a verdict according to the law and the evidence.” NY CPL § 270.15(2).
Any prospective juror that is excluded will generally be replaced by another prospective juror from the larger jury panel. “If the jury is not selected from the first group of people placed in the jury ‘box’ and members of the panel remain, the court may fill the ‘box’ with such number of the remaining people as the court deems appropriate and continue the process until a jury is selected.” McKinney, NY CPL § 270.15. “The juror whose name was first drawn and called must be designated by the court as the foreperson, and no special oath need be administered to him or her.” NY CPL § 270.15(3).
Peremptory Challenges
Following parties’ opportunity to challenge for cause, the court must permit peremptory challenges to the remaining prospective jurors. Both sides have a “statutorily guaranteed right to exercise peremptory challenges.” DANY must exercise its “peremptory challenges first and may not, after” Trump “has exercised his peremptory challenges, make such a challenge to any remaining prospective juror who is then in the jury box.” NY CPL § 270.15(2).
Unlike challenges for cause, a “peremptory challenge is an objection to a prospective juror for which no reason need be assigned. Upon any peremptory challenge, the court must exclude the person challenged from service.” NY CPL § 270.25(1). For a Class E felony like first-degree falsifying business records, each party must be allowed ten peremptory challenges for the regular jurors and two for each alternate juror to be selected. NY CPL § 270.25(2).
30. What can we expect from jury selection here?
a. Juror Demographics
In DANY’s prosecution of the Trump Organization, 132 prospective jurors were whittled down to twelve jurors for trial (eight women and four men) and six alternates. Among the twelve were a retired nurse living in East Harlem as well as a retired man from Washington Heights. Among prospective jurors eventually struck were a political consultant for liberal political candidates, a Manhattan doorman, a woman psychiatrist, and a woman from the Manhattan Murray Hill neighborhood who worked at a financial services company.
The jury pool in the federal Carroll litigation was wider than in the impending DANY case, drawing on jurors from across the Southern District of New York (Manhattan, Bronx and several suburban counties). As noted above, the jury pool in DANY’s case against Trump will be drawn from New York County (Manhattan) alone. That said and although jurors were anonymized, what we do know of the prospective juror pools and the nine jurors eventually selected in those cases offer insight into potential demographics in the DANY prosecution of Trump.
Jury selection in Carroll I consisted of 50 prospective jurors. The final jury consisted of 7 men and 2 women. All but one of the jurors were White. “At least three indicated they moved to the U.S. after growing up in Europe — specifically Germany, Ireland and Spain.” The majority were from Manhattan, the Bronx and Westchester County, and their jobs included a property manager, a professional violinist, a retired track supervisor for the New York City Transit Authority, an emergency physician, a publicist, and four other New Yorkers. “Not everyone offered their age, but among those who did, the ages ranged from 26 years old to 60 years old.” Similarly, Carroll II saw 48 prospective jurors summoned, consisting of a “decent cross-section of New York: people of different ages, races, genders, and social classes.” The final jury in Carroll II consisted of six men and three women. In Carroll II, all jurors indicated that they had registered to vote, as did “many” in the subsequent defamation trial, though in Carroll II several had not voted in 2016 and 2020.
b. Duration of Jury Selection
The length of jury selection is difficult to predict. It is highly dependent on the prospective jurors’ responses to questions asked, any challenges made by the prosecution or defense, as well as Merchan’s ability to keep the ball rolling (which he did in DANY’s case against the Trump Organization). Jury selection in both Carroll cases was complete within a day. It took an unexpectedly short three days to empanel twelve jurors in DANY’s prosecution of the Trump Organization and an additional day to choose six alternate jurors.
We expect a longer period here as the trial against the Trump businesses did not involve him personally, and jurors are likely to have strong feelings about him one way or the other. It is true that he was the defendant in the civil cases, and jury selection went quickly there. However jury selection in federal court is different from state court, and more jurors are needed in this criminal matter. Moreover, the estimated six-week trial may be problematic for some in the jury pool.
c. Potential Questions and Striking Jurors
The key issue during jury selection is ensuring the right questions are asked of prospective jurors to ensure a fair trial and avoid a mistrial. The recent February 15 hearing before Merchan provided a glimpse into potential questions the prosecution and defense will ask to whittle down their jurors for trial. First, questions are likely to focus (in part) on the political affiliations of prospective jurors. This is an important matter to deal with; juror “political bias” has already led to a mistrial in the New York federal case against Trump ally Timothy Shea. Secondly, questions are expected to mirror, to an extent, those used in the Trump Organization criminal case and federal Carroll cases. Beyond Merchan dismissing the defense’s “hybrid approach” suggestion that all prospective jurors be questioned even if they raise their hand to affirm that they believe they could not be fair and impartial, final questions are yet to be settled. We therefore begin by looking at some of the questions asked in those cases and the jurors’ responses, before turning to specific questions discussed so far in this case.
DANY’s prosecution of the Trump Organization included a 32-part questionnaire and one-on-one questioning. Prospective jurors were questioned in groups, with each side given 30 minutes to ask questions. Many “were not shy about expressing their thoughts,” though those eventually picked “were among the least vocal about Trump,” but some had “admitted that they had opinions about him and his leadership, but vowed to set aside any personal thoughts and consider only evidence presented during the trial.” The six alternate jurors included “several who expressed dislike for Trump, including one who described some of his comments as ‘racist’ and another who called him ‘offensive’ and ‘degrading.’ Merchan allowed them to serve because they said they could be fair and impartial in this case.” “It is about whether those feelings about Trump would prevent their ability to be a fair and impartial juror,” DANY argued in a conference with Merchan and defense counsel.
Merchan sought to draw a clear line between opinions that were innocuous and those that were disqualifying: merely having an opinion on Trump as a president was not enough, for it bore no relevance to his work as a businessman and his company. In addition to questions about Trump, “prospective jurors were asked several other questions, including about whether they could trust testimony from Mr. Weisselberg when they knew he stood to benefit from taking the stand.” Among those struck were individuals whose views were particularly one sided, including a woman who said Trump continued to lie to the American people that he won the 2020 presidential election, another woman who was unapologetically supportive of Trump and his company, a psychiatrist who said she believed Trump exhibited social narcissistic behavior, a Manhattan doorman who said he was leaning to one side, and as well as a political consultant for liberal political candidates who had DA Bragg as a guest on a podcast he hosted.
In both Carroll cases, Judge Kaplan posed all questions to jurors, as is the custom in federal court, with jurors indicating “their answers by either raising their hands or standing.” In New York state court, however, after the judge leads the questioning, the parties are each given an opportunity to question the panel. Justice Merchan may seek to utilize this procedure in the DANY case just as he did in DANY’s case against Trump’s corporations.
In Carroll I, prospective jurors were asked if they believed that the 2020 election was stolen. A few said they did and were ultimately not selected to serve. They were also asked whether they had “ever contributed money or supported a political campaign” for Trump, Obama, Hillary Clinton or Biden. Specific to Trump, prospective jurors were asked whether they had “ever read any books by Mr. Trump?” Or if they had “ever watched ‘The Apprentice?’” (A handful indicated they had). Examples of jurors that were not selected in Carroll I included a “retired English teacher who got her news from ‘Pod Save America,’…a workplace investigator from Westchester who had attended a Trump rally…[and] a 60-year-old corporate lawyer from Manhattan who answered affirmatively when…asked whether anyone felt that…Trump was being treated unfairly by the courts.” The jury selection process in Carroll II was very similar. Questions included whether prospective jurors believed the 2020 election was stolen as well as whether they supported conspiracy theories peddled by QAnon, Oath Keepers, Antifa, and the like. No hands were raised to either. “One woman was excused from service when she said she believed in the #MeToo movement.” Around a fifth of prospective jurors were struck for saying they would struggle to decide the case justly and impartially.
In addition to a selection of the questions topics above, the February 15 hearing (see here and here) provided a glimpse into some of the questions the prosecution and defense intend to ask, including:
- Whether jurors support or follow conspiracy theory groups such as QAnon, the Proud Boys, or Antifa.
- Whether jurors believe the 2020 election was stolen, which the prosecution wanted but the defense opposed. Jurors in Carroll were asked this question.
- Thoughts on if Trump is being treated unfairly by the courts, which the defense opposed.
- Whether jurors have a desire to see Trump convicted.
- Whether jurors had read or listened to relevant recent books or podcasts from Mark Pomerantz and Michael Cohen.
- Jurors’ bumper stickers and yard sticks.
- Whether jurors have ever read or listened to any of Trump’s books and related literature.
- Whether jurors have ever read, watched, or listened to any media involving Trump, which the prosecution took issue with as “too broad to probe bias.”
- What media outlets jurors engage with. The prosecution suggested adding conservative shows such as Tucker Carlson, Infowars, Ben Shapiro show, and Alex Jones show, prompting the defense to suggest further outlets. Merchan suggested that a version of the question could be adopted from the prosecution of the Trump Organizations, or dropped altogether.
- Whether jurors are Democrats or Republicans, although the prosecution disagreed and it seems Merchan did too.
31. Will Trump know the jurors’ names and addresses?
Unlike in federal court (including in the Carroll cases), New York state criminal rules do not provide for fully anonymized jurors. For that reason, on February 22, 2024, DANY filed a motion for a protective order emphasizing the necessity of protecting jurors. The motion sought three forms of relief: (1) prohibiting disclosure of prospective and sworn jurors’ residential and business addresses except to counsel of record (but not the parties themselves); (2) prohibiting disclosure of jurors’ names except to to the parties and counsel; and (3) warning Trump that any harassing or disruptive conduct toward jurors could result in forfeiting his access to their names. DANY’s motion argued that Trump’s “conduct in this and other matters—including his extensive history of attacking jurors in other proceedings—presents a significant risk of juror harassment and intimidation that warrants reasonable protective measures to ensure the integrity of these proceedings, minimize obstacles to jury selection, and protect juror safety.”
Trump filed a response on March 4. He largely agreed to the first two requests but suggested the disclosure of names should include the entire legal team, including paralegal and jury consultants. Trump also asked the court not to tell jurors why such precautions were being taken so as not to prejudice him. If jurors asked, Trump suggested a neutral explanation be given so that the jurors were not affected by knowing that Trump’s history of conduct justified the precautions.
On March 7, the court granted the protective order on the first two issues but expanded the disclosure of jurors’ names to the entire legal teams, as Trump requested. In terms of warning Trump about his statements, the court reserved judgment until it rules on the gag order. But the court did remind both sides of its prior instructions to refrain from, and encourage their witnesses to refrain from, making any comments that could incite violence, civil unrest, or jeopardize the courtroom proceedings.
TRIAL: THE CORE PROSECUTION AND DEFENSE CASES
32. What are the stages of a criminal trial?
N.Y. Crim PL § 260.30 sets out the “order of a jury trial, in general,…as follows:
- The jury must be selected and sworn.
- The court must deliver preliminary instructions to the jury.
- The people must deliver an opening address to the jury.
- The defendant may deliver an opening address to the jury.
- The people must offer evidence in support of the indictment.
- The defendant may offer evidence in his defense.
- The people may offer evidence in rebuttal of the defense evidence, and the defendant may then offer evidence in rebuttal of the people’s rebuttal evidence. The court may in its discretion permit the parties to offer further rebuttal or sur-rebuttal evidence in this pattern. In the interest of justice, the court may permit either party to offer evidence upon rebuttal which is not technically of a rebuttal nature but more properly a part of the offering party’s original case.
- At the conclusion of the evidence, the defendant may deliver a summation to the jury.
- The people may then deliver a summation to the jury.
- The court must then deliver a charge to the jury.
- The jury must then retire to deliberate and, if possible, render a verdict.”
33. What can we expect from opening statements?
Opening statements are an opportunity for each side to introduce the case and preview the evidence for the jury. Opening statements are not evidence; they are the attorneys’ summaries of what they expect the evidence to show.
a. The Prosecution Opening
For prosecutors, an effective opening statement will inform the jury of what happened—the who, what, where, when and why. It will explain the theory of prosecution—the lens through which it wants the jury to view the evidence. It will preview the evidence: the key witnesses, documents, and other pieces of information that will prove the case. And it should be interesting; effective prosecutors will use the opening to tell the jury a compelling story.
Expect DANY to make the following points in its opening (note that these are all allegations at this point, to be proven or not by the evidence introduced):
- Identifying the central issue of the case: this is a case about campaign corruption and cover up.
- Connect the central issue to the crimes charged: Trump falsified business records in order to conceal hush money paid to Stormy Daniels at the end of the 2016 campaign. Coming on the heels of the Access Hollywood tape, Trump feared another scandal would have affected the campaign so he hid it, and then was involved in faking 34 documents to cover that up. He did all of this with the intent to commit, aid or conceal violations of federal and state election laws and state tax law.
- We do not anticipate the prosecution getting too much into the weeds of the law, which is more appropriate for closing arguments. But giving a glimpse of the legal theory at the beginning of the case will help orient the jury about what DANY must prove.
- Tell the story:
- Trump, Cohen, and Pecker had a meeting in August 2015, two months after Trump announced his presidential candidacy in June. They agreed to a “catch and kill” arrangement, with Pecker to serve as the “eyes and ears” for the campaign by looking out for possible negative stories about Trump and alerting Cohen to suppress publication of the stories. Pecker also agreed that AMI would publish negative stories about Trump’s competition.
- In late 2015, Pecker heard that Trump’s former doorman at Trump Tower was selling a negative story about Trump, and Pecker directed AMI to purchase the rights to the story in order to suppress it. AMI paid the doorman $30,000, and although they learned the story was not true, Cohen instructed Pecker not to release the doorman from the deal until after the election.
- Around June of 2016, the editor-in-chief of the National Enquirer contacted Cohen about Karen McDougal, who claimed to have had an affair with Trump. Trump was worried about the information leaking as it would hurt his candidacy.
- Trump, Cohen, and Pecker discussed how to buy McDougal’s silence, and they ultimately agreed AMI would pay her $150,000 to keep quiet, along with giving her cover features and a series of articles to be published under her name. Trump, Cohen, and Pecker agreed that Trump or the Trump Organization would reimburse AMI. In a recorded conversation, Trump and Cohen discussed reimbursing AMI and setting up a shell company to effectuate the scheme. (The publisher ultimately backed out of seeking reimbursement and the payment was never made.)
- In early October 2016, just one month before the election, news broke of an Access Hollywood tape in which Trump made highly offensive comments about women. Trump and his campaign team were concerned about the impact on voters, especially women voters.
- Shortly after the Access Hollywood news, Pecker heard that Daniels claimed to have had an affair with Trump. On Pecker’s instruction, the editor-in-chief notified Cohen and connected Cohen with Daniels’ attorney.
- Cohen and Daniels’ attorney agreed to secure her silence by paying her $130,000 for the exclusive rights to her story.
- Cohen and Trump talked about this arrangement, and Trump wanted to wait until after the election so he could avoid having to pay Daniels. Ultimately, as pressure mounted and the election approached, Trump agreed to the payoff.
- Trump and Cohen agreed that Cohen would make the payment and Trump would reimburse him. In late October, just two weeks before the election, Cohen paid Daniels’ attorney $130,000 as everyone had agreed.
- After the election, Trump made arrangements to reimburse Cohen with Allen Weisselberg, the Trump Organization’s CFO. Weisselberg and Cohen agreed to a total payment of $420,000. They reached that number by adding $130,000 for the Daniels reimbursement plus $50,000 for a separate reimbursement. To conceal that the payments were reimbursements, they agreed to double that amount to $360,000 so that Cohen could falsely claim the payment was his income—which would incur income tax—leaving Cohen whole after paying the tax. They also agreed to pay Cohen a $60,000 bonus, for a total of $420,000, paid at a rate of $35,000 every month for twelve months. Over the course of a year, Cohen was to submit a false invoice claiming $35,000 per month in legal fees when in fact the funds were the reimbursement to cover up the hush money payment and other expenses.
- Cohen worked out the details with Weisselberg, and then later met with Trump in the Oval Office to confirm the arrangement.
- Cohen ended up submitting eleven false invoices—the first one covered two payments—claiming the repayment was for legal expenses. Every month the Trump Organization falsely documented the invoices and the payments in the corporate books as if it were repayment for legal expenses. The first two checks were from Trump’s Trust account; the other nine were from Trump’s personal account.
- The payments to Cohen stopped after he received the last $35,000 check.
- Preview the evidence: DANY will give the jury an idea of how it is going to prove that story, specifying key pieces of evidence, including:
- Testimony from (likely) witnesses such as Michael Cohen, Stormy Daniels, Karen McDougal, David Pecker, and Dino Sajudin (the former doorman).
- Text messages and emails showing conversations between Trump, Cohen, and others.
- Business records of the Trump Organization, including the checks, fake invoices, and false ledger entries, all intended to conceal the true nature of the campaign expense of silencing Daniels.
- Weisselberg’s notes showing how a $130,000 reimbursement became $420,000 in payments.
- Business records of Cohen’s shell company, Essential Consultants.
- Prepare the jury for credibility attacks on Cohen and Daniels by fronting inconsistent statements they have made and Cohen’s criminal conviction for false statements. Also, inform the jury that the documents will corroborate each of their testimony.
- Preview likely defenses. See Question 43.
- Introduce different themes, including:
- Common sense will reveal Trump’s motivations: the evidence will show that he knew news of his affair with Daniels could be a major issue for the campaign, so he silenced her and covered it up.
- Trump created a pressure campaign on Cohen and others not to cooperate with law enforcement, which shows his consciousness of guilt.
- Trump chose to be involved in every aspect of this scheme and cover-up: the “catch and kill” agreement, the hush money payment, the reimbursement, and the falsification of the records to cover it up.
- Preview the law:
- Explain there are 34 counts pertaining to the eleven checks, eleven false invoices, and twelve false ledger entries.
- Outline each of the elements of the crime charged.
- Explain the intent to commit, aid or conceal other laws that escalates the falsification of records to a felony, preview how that will be proven, and what the other laws are.
b. The Defense Opening
As with the prosecution opening statement, the defense opening will introduce the jury to the defense theory of the case. A major difference, however, is whereas the prosecution is trying to prepare the jury for accepting its theory of the case and the evidence in support, the defense can achieve its goal of creating reasonable doubt in two complimentary ways: poking holes in the prosecution’s theory, or offering a different theory altogether.
Expect Trump’s team to accomplish the following in its opening:
- The defense may choose to offer a competing theory of the case, such as:
- Trump’s motivation was to keep personally embarrassing information away from his wife and children; not to keep it away from voters. There is nothing inherently wrongful about suppressing negative information during a campaign, and therefore Trump did not have any intent to defraud or violate election laws.
- Trump did not have any intent to commit or conceal any tax crime, as he was not involved in the preparation, filing, or payment of Cohen’s personal taxes.
- Trump was not involved in the creation of business records other than signing checks for services to his personal attorney, Cohen.
- (Trump might have tried to argue that he relied to some extent on advice from his lawyers but the court ruled that Trump may not “even suggest” the defense in the form Trump was advancing here.)
- The defense may nest one or more of those theories in contextual facts tending to exonerate Trump:
- Even before being elected President, Trump was a highly successful businessman and one of the most recognizable people on the planet. Like many celebrities, he is often the target of unscrupulous people trying to take advantage of him for money or other reasons. His presidential candidacy enlarged the target on his back.
- Like any political campaign, Trump’s team had a communications strategy in which they tried to maximize favorable coverage, minimize or eliminate negative coverage, and amplify negative coverage of his opponents.
- Trump was not intimately involved with this strategy and left it to his political team and allies to handle. Trump had minimal knowledge of and involvement with alleged arrangements with Sajudin, McDougal, and Daniels.
- Michael Cohen had been an attorney for Trump for years, and Trump routinely paid him money for legal services. Cohen was a “fixer” for Trump, who Trump trusted to handle a variety of issues, often without Trump’s knowledge.
- Like many small business owners, Trump’s personal and business accounts were often commingled, which resulted in different entities paying different expenses at different times based on routine business considerations.
- As the principal owner and CEO of a multi-billion dollar group of companies, Trump was not the person making every operational decision. He relied on his subordinates, including his CFO, accountants, and lawyers, to handle the daily operations.
- Poke holes in the prosecution’s evidence.
- Start with Cohen. Emphasize how he is the prosecution’s star witness. Everything starts and ends with Cohen: the alleged catch and kill agreement, the alleged hush money payments, the alleged cover-up, the alleged false invoices. Trump’s lawyers may ask the jury to consider as they hear the evidence whether there is any case at all without Cohen. And then they will challenge Cohen’s credibility, as a convicted felon and admitted perjurer who has told several different stories about the conduct in question.
- Consider challenging the credibility of Daniels and other witnesses.
- Emphasize how the documentary evidence demonstrates the lack of Trump’s personal involvement: Trump was not processing the invoices, making the ledger entries, or drawing up the checks. Trump was not the one primarily handling the Trump Organization records that are alleged to be false. And Trump was obviously not the one who submitted Cohen’s invoices that the prosecution contends are false.
- Preview the evidence: summarize the witnesses who will testify on Trump’s behalf and the documents and other evidence that will be introduced, and how that (1) supports the defense theory of the case and/or (2) pokes holes in the prosecution’s case.
- Consider whether to let the jury know if Trump will testify. This is an important decision for the defense, and they should tell the jury Trump will testify only if they are certain that he will take the stand. They will most likely punt, avoiding a commitment and making the decision at or near the last minute because the decision is a momentous one and they will want to have as much information as possible about how the trial is going before they make it.
- Emphasize reasonable doubt: the many weaknesses in the state’s case, including their key witnesses being not credible, the lack of any smoking gun proof, and questionable interpretations of other evidence, provide many different reasons to doubt the prosecution’s theory.
- Emphasize that the burden of proof is entirely on the prosecution.
- Humanize Trump: He’s a controversial ex-president who speaks his mind, and the prosecution has introduced salacious and unflattering aspects of his private life. The jury does not have to like him, agree with him, or approve of what he has said publicly or done privately. But the jury is not here to judge him for being the perfect candidate or person. The jury is only to determine whether the prosecution has proven beyond any reasonable doubt that Trump committed the crimes in question.
- Address affirmative defenses, such as that Trump relied on his counsel, including Cohen, for the legality of the actions.
- Complicate the case: Whereas the prosecution wants to simplify the case and therefore the jury’s ultimate decision, look for the defense to tell the jury that the case is about many issues, and that the prosecution is oversimplifying and conflating two-and-a-half years of conduct involving Trump’s personal life, his business, and his campaign.
34. What is the prosecution’s case?
Once we get past the opening statements, DANY’s burden starting with their first witness is to prove that Trump intentionally falsified (or caused the falsification of) business records and did so with the intent to commit, aid, or conceal violating federal election law, state election law, or tax fraud. The question is how does the prosecution prove this. While the parties’ witness and exhibit lists are not public, we can assess the broader contours of the prosecution and defense cases based on publicly available information.
As discussed at Question 33 regarding opening statements, the prosecution will hammer home the central theme of election interference: that Trump corrupted the 2016 election to protect his campaign through the hush money payments and then covered it up. The prosecution’s goal will be to prove the narrative it described in the opening statement. Daniels, her attorney, McDougal, Sajudin, Pecker, and possibly others (such as advisors from the Trump campaign) are the key witnesses to establish the full account of the “catch and kill” agreement within which the hush money payment occurred. DANY may of course elect not to call former campaign advisors because of their perceived loyalty to Trump, in which case emails, texts, and memos can fill those parts of the narrative. Other AMI witnesses, such as the National Enquirer’s editor-in-chief, Dylan Howard, can also supplement the testimony that Pecker will offer (if called). For example, Howard could testify that he was following Pecker’s orders in working with Cohen about buying and suppressing stories, even if the editor did not know about an express “catch and kill” agreement between Trump and Pecker.
Expect the prosecution also to call Trump Organization employees who were responsible for record-keeping to explain how the company accounted for the reimbursement payments to Cohen. The records themselves—in particular the 34 checks, invoices, and ledger entries corresponding to each of the 34 counts—are important. But having a person from within the Organization explain those records brings them to life for the jury in a way that introducing them through a law enforcement witness or offering them into evidence without witness testimony does not.
Press reports have suggested the prosecution will not call Weisselberg. On the one hand, he could be a powerful witness to explain the record keeping, corroborate Cohen’s testimony, and possibly testify to incriminating conversations he had with Trump. But on March 4, 2024, Weisselberg pleaded guilty to two felony perjury charges for lying during his deposition testimony in July 2020 in connection with the civil fraud trial against Trump. He also admitted lying during his trial testimony but was not charged with that offense. Weisselberg’s guilty plea undercuts his credibility as a witness, and DANY may elect not to call him as a witness for that reason let alone whether he can be trusted to tell the truth.
Michael Cohen will be an important witness. Obviously the prosecution cannot call Trump as a witness (because of his 5th Amendment rights), leaving Cohen as the only person with first-hand knowledge of the one-on-one conversations he had with Trump. Expect DANY to elicit from Cohen incriminating communications with Trump, including that the two discussed how Trump would reimburse Cohen in a manner to conceal the nature of the reimbursements. The icing on the cake of Cohen’s testimony would be if he had conversations with Trump about whether the hush money payments should have been a campaign expense or the impropriety of having Cohen classify his reimbursement as income. But make no mistake, Cohen’s testimony—and thus his credibility—is essential to the prosecution’s case.
We address the inevitable attacks on Cohen’s credibility in more detail below as part of the defense case. To bolster Cohen’s credibility, expect the prosecution to take the initial step of acknowledging his credibility issues from the outset. As noted above, the prosecution should reference this in the opening statement and then, with Cohen on the witness stand, question him about his admitted lies, inconsistent statements, and personal animosity toward Trump. Presenting this information objectively and allowing Cohen to explain it will help the prosecution’s credibility by showing they are not hiding anything from the jury and mitigate the impact of the defense attacks to come. Two additional steps the prosecution can take to bolster Cohen are to (1) emphasize how, in spite of his checkered past with telling the truth, he has been consistent in describing the events at issue in this case, and (2) use documents and audio recordings to corroborate his testimony.
35. What is the defense case?
Once we get past the opening statements, as with most criminal prosecutions, the defense case has two parts: poking holes in the prosecution’s case and offering an alternative narrative. The defense will accomplish the former primarily through cross-examination of the prosecution witnesses and the latter primarily through putting on its own case.
As outlined at Question 34 above, expect Trump to attack the prosecution’s case primarily by challenging witness credibility and by highlighting Trump’s lack of involvement.
That starts with Cohen. In 2018, he pleaded guilty to tax evasion, making false statements to a financial institution, and campaign finance violations. After he sought a reduction in his 36-month sentence in 2019, federal prosecutors opposed the motion arguing that they had “substantial concerns” about his credibility, noting contradictions between his public comments, including post-sentencing congressional testimony, and his acceptance of responsibility from his guilty plea. The court eventually rejected Cohen’s attempt to cut his sentence. While testifying during Trump’s civil fraud trial in 2023, Cohen admitted lying under oath during his 2018 guilty plea.
New York Rule of Evidence 6.19 allows Trump to use Cohen’s conviction to impeach his credibility, but Rule 6.11 prohibits using extrinsic evidence to impeach a witness on a “collateral” matter, meaning one not directly relevant to issues in the present case. This means that while Trump’s attorneys can question Cohen about his inconsistent statements, they likely cannot introduce the court filing in which federal prosecutors questioned his credibility, or any other outside evidence (except for criminal convictions).
While Trump’s team will surely attack Cohen as not credible, whether they do so with other potential witnesses such as Daniels, McDougal, and Sajudin is less certain. Sometimes the defense will utilize a strategy of attempting to discredit any prosecution witness. Other times, the defense will be selective in challenging witnesses because it (1) highlights the importance and effect of the credibility challenges it chooses to make, and (2) suggests that the testimony of witnesses it chooses not to challenge is not helpful to the prosecution.
In this case, the better strategy appears to be the latter. Based on what we currently know, neither Daniels, McDougal, nor Sajudin is likely to offer evidence that directly incriminates Trump, for example by testifying about his intent. Instead, all three can provide details on the operation of the “catch and kill” agreement. Also, Daniels and McDougal are likely to come off as sympathetic women caught up in Trump’s personal and political life. As one former prosecutor commented, “I’ll take the credibility and jury appeal of Daniels over the credibility of Trump as a witness any day of the week.” Sajudin may inherently be less sympathetic and more likely to be viewed as someone who tried to make a quick buck by selling dirt (and allegedly false dirt at that), but all three witnesses are more involved in the salacious background stories than the core criminal conduct at issue. Trump’s best bet may be to highlight the testimony that none of the three offered–the lack of direct, incriminating evidence–rather than attack their credibility.
Minimizing the importance of Daniels and other secondary witnesses dovetails with the expected defense of arguing Trump’s limited involvement in the business decisions that underlie the main allegations of misconduct. Through cross-examination, the defense will likely emphasize Trump’s absence from critical conversations, emails, and text messages between Pecker, Daniels’ lawyer Keith Davidson, Cohen, Weisselberg, Trump Organization Chief Legal Officer Alan Garten, and the other Trump Organization employees who handled accounting, processed invoices and payments, and kept the books. Similarly, expect the defense to emphasize Trump’s lack of involvement in the events generating another key body of evidence: the proof of Trump’s intent in causing the falsification of books and records included an intent to commit, aid or conceal an election or tax crime. The better that Trump’s attorneys do to minimize direct, incriminating evidence of his involvement, the more it makes the prosecution’s case dependent on Cohen’s testimony.
Emphasizing Trump’s limited involvement through its cross-examination of prosecution witnesses also dovetails with the defense strategy of offering its own factual narrative. For Trump, as with most criminal defendants, the decision whether to put on an affirmative case often depends on the strength of the prosecution’s case. Here, expect Trump to call witnesses and introduce evidence to present a competing narrative, as outlined above in Question 34, that the “catch and kill” arrangement was typical politics that he left to his campaign team; that Trump and his associates had been involved in similar arrangements prior to running for office; that he had limited knowledge of the arrangements with Daniels, McDougal, and Sajudin; that he trusted Cohen to handle legal issues for him without Trump’s oversight or involvement; that he trusted Weisselberg and others at the Trump Organization to run the back-office operations of the company; that Trump was not involved in any decision about Cohen’s taxes or what expenses were being attributed to the campaign versus him personally; and that Trump’s motivation was protecting his family.
It will be important for Trump to acknowledge some limited involvement in higher-level decisions; claiming not to have known anything will likely not be credible. In this way, Trump may be able to offer a plausible narrative of having known and helped make the big decisions but not knowing the details that are the basis for the alleged crimes.
Lastly, expect Trump to use his case-in-chief to bolster his legal arguments, discussed at Question 43.
36. Will Trump be present during trial?
Generally, a “defendant must be personally present during the trial of an indictment.” NY CPL § 260.20. Indeed, the defendant has an affirmative right to be present. The court can, however, remove a defendant “who conducts himself in so disorderly and disruptive a manner that his trial cannot be carried on with him in the courtroom,” as long as “he has been warned by the court that he will be removed if he continues such conduct, [and] he continues to engage in such conduct.” Id.; see also McKinney, NY CPL § 260.20. New York case law has recognised that when a defendant who for that or other reasons forfeits his right to be present, no adverse inference can be drawn from non-attendance.
37. Will Trump testify, and will it hurt him if he doesn’t?
In a strictly legal sense, Trump choosing not to testify cannot be used against him. The Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt,” and, as New York law and courts have recognized, it prohibits the jury from drawing any adverse inferences from a criminal defendant’s choosing not to testify.
A defendant’s Fifth Amendment right against self-incrimination is not limited at trial to the decision of whether to testify but extends to putting on a case, offering any evidence, or cross-examining any witness. In short, Trump and his attorneys can say and do nothing throughout the entire trial, and the prosecutors cannot comment on their lack of a defense, nor can the jury infer anything from it. The burden is always on DANY to prove the case.
If Trump chooses not to testify, Merchan will be required to direct the jury on no adverse inference being drawn if Trump requests such a charge (as he surely would). However, Trump not testifying would mean he missed an opportunity to directly present his side of the story. It could also possibly humanize Trump before the jury. (Trump might also have needed to testify in order to establish the factual prerequisites for asserting an advice-of-counsel defense, but as we note in Question 45, Trump waived that defense and the court precluded him from trying to shoehorn in a similar “presence of counsel” defense.)
Conversely, Trump taking the stand “will be a most risky proposition” in light of his 30,000 proven lies. Additionally, Trump’s recent testimony in the civil fraud trial should give him pause. As Judge Engoron found, “Trump rarely responded to the questions asked, and he frequently interjected long, irrelevant speeches on issues far beyond the scope of the trial. His refusal to answer questions directly, or in some cases, at all, several compromised his credibility.”
Given the volume of ammunition on which to cross him and his poor performance at the civil fraud trial, we would expect Trump’s able attorneys to likely advise him not to take the stand. But things could certainly change, as Trump’s lawyers have noted. In either case, in and around the courthouse, Trump has often been “his own worst enemy.” So the critical question is not what advice his lawyers will give, but whether Trump will follow it.
38. How long will the trial last?
Justice Merchan said he expects the trial to take around six weeks, with DANY estimating its case-in-chief to last 3-4 weeks. Trials often take longer than anticipated, and our assessment based on the evidence and analysis in this essay is that it could take up to eight weeks. That being said, trials are inherently unpredictable and the case could take shorter or longer than all have estimated.
39. How long will jury deliberations take?
It is difficult to predict, but if the trial lasts around six to eight weeks, expect jury deliberations to last from a few days to around one week.
ADDITIONAL TRIAL ISSUES
40. What does DANY have to prove to convict?
All 34 counts allege the same charge of falsifying business records in the first degree. For each count, per New York’s standard jury instructions the two elements that must be proven are:
(1) That on or about the date in question, Trump made or caused a false entry in the business records of an enterprise; or
Altered, erased, obliterated, deleted, removed, or destroyed a true entry in the business records of an enterprise; or
omitted to make a true entry in the business records of an enterprise in violation of a duty to do so which the defendant knew to be imposed upon him/her by law or by the nature of his/her position; or
Prevented the making of a true entry of caused the omission thereof in the business records of an enterprise; and
(2) Trump did so with intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof.
In terms of part (1) of the statute, the very first prong (“made or caused“) is the only theory pleaded in the indictment, so the other three will not go to the jury. In terms of part (2), intent to defraud, “courts in the First Department have interpreted this culpable mental state broadly. Intent to defraud is not constricted to an intent to deprive another of property or money. In fact, ‘intent to defraud’ can extend beyond economic concern. Nor is there any requirement that a defendant intend to conceal the commission of his own crime; instead, ‘a person can commit First Degree Falsifying Business Records by falsifying records with the intent to cover up a crime committed by somebody else.’” People v. Trump 2024 NY Slip Op 30560(U). Note that the state’s pattern jury instructions say that intent “means conscious objective or purpose. Thus, a person acts with intent to defraud when his or her conscious objective or purpose is to do so.”
41. What are the other crimes that DANY has to prove Trump intended to commit, aid, or conceal?
As part of establishing the second element of each falsifying records charge, DANY must prove that Trump intended to commit, aid, or conceal another crime—in this case, either a violation of the Federal Election Campaign Act, New York Election Law § 17-152, or New York tax law. Importantly, DANY does not have to prove that Trump actually violated any of the three predicate crimes, but rather that by falsifying (or causing the falsification of) business records he had the intent to commit, aid, or conceal the commission of such crime(s). Further, the jury need not find that Trump had that intent as to all three predicate crimes—a conviction is proper if jurors are satisfied beyond a reasonable doubt as to an intent to commit at least one predicate crime per count.
a. Federal Election Campaign Act (FECA)
Throughout 2016, FECA placed the following applicable limitations and prohibitions on campaign contributions: (a) individual contributions to any presidential candidate, including expenditures coordinated with a presidential candidate or her political committee, were limited to $2,700 per election, and presidential candidates and their committees were prohibited from accepting contributions from individuals in excess of this limit (52 U.S.C. § 30116(a)(1)(A), (f); 11 C.F.R. §§ 110.1(b), 110.9); and (b) corporations were prohibited from making contributions directly to presidential candidates, including expenditures coordinated with presidential candidates or their committees, and presidential candidates and their committees were prohibited from accepting corporate contributions (52 U.S.C. § 30118(a); 11 C.F.R. § 114.2(b)). (See also Cohen federal criminal information, p. 11; FEC McDougal/AMI/Pecker analysis, pp. 13-15; FEC Cohen analysis, p.2, n. 3). A “contribution” includes “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A). (See also 11 C.F.R. §§ 100.52(a); 113.1(g)(6))
The amount that Cohen and ultimately Trump paid to purchase and suppress information that could harm Trump’s campaign far exceeded those limits as of 2016.
b. State Election Law
New York Election Law § 17-152 prohibits a conspiracy to use “unlawful means” to promote or prevent a person’s election. The phrase “unlawful means” is interpreted broadly and is not limited to crimes but rather includes any conduct unauthorized by law. In denying Trump’s motion to dismiss, Justice Merchan upheld DA Bragg’s theory under this statute, namely: “the People allege that Defendant intended to violate N.Y. Election Law § 17-152 by conspiring to ‘promote the election of any person to a public office… by entering a scheme specifically for purposes of influencing the 2016 presidential election; and that they did so by ‘unlawful means,’ including by violating FECA through the unlawful individual and corporate contributions by Cohen, Pecker, and AMI; and… by falsifying the records of other New York enterprises and mischaracterizing the nature of the repayment for tax purposes.’ People’s Opposition at pg. 25.”
c. State Tax Law
For the purposes of tax violations, Bragg relies on two related tax provisions: New York Tax Law §§ 1801(a)(3) & 1802. Section 1801(a) sets out relevant tax fraud acts, with subsection (3) prohibiting “knowingly suppl[ying] or submit[ting] materially false or fraudulent information in connection with any [tax] return, audit, investigation, or proceeding.” The tax fraud includes four elements: (1) a tax document filed, submitted or supplied; (2) falsity; (3) materiality; and (4) intent (willfulness). Any person who commits a tax fraud act, including under 1801(a)(3), is guilty, at a minimum, of criminal tax fraud in the fifth degree, a Class A misdemeanor crime under Section 1802, where the tax liability is less than $3,000. No additional mens rea is required, such as an intent to evade taxes or defraud the state. In this case, the primary alleged tax violation was Cohen falsely declaring the reimbursement as income, which artificially increased his tax liability. As Justice Merchan already found, however, an allegation of tax fraud where the state “was not financially harmed … and instead would wind up collecting more tax revenue” does not preclude the tax violation from being a predicate act for the first degree falsification of business records.
42. What is the burden of proof?
In any criminal case, the prosecution must prove each of the elements of a particular count beyond a reasonable doubt. At the beginning and end of the trial, the judge will instruct the jury on the definition of reasonable doubt. New York’s model jury instructions describe reasonable doubt, in part, as follows:
[T]here are very few things in this world that we know with absolute certainty. Therefore, the law does not require the people to prove a defendant guilty beyond all possible doubts. On the other hand, it is not sufficient to prove that the defendant is probably guilty. Criminal case, the proof of guilt must be stronger than that.It must be beyond a reasonable doubt
A reasonable doubt is an honest doubt of the defendant’s guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.
Proof of guilt beyond a reasonable doubt is proof that leaves you so firmly convinced of the defendant’s guilt that you have no reasonable doubt of the existence of any element of the crime or of the defendant’s identity as the person who committed the crime.
43. What will be Trump’s main legal defenses?
In addition to raising factual defenses that challenge the prosecution’s narrative of what happened, Trump will raise legal defenses that focus on the legal insufficiency of the charges. In other words, where the factual defenses amount to “I didn’t do what you said I did,” the legal defenses are essentially, “Even if I did what you said I did, it’s not a crime.”
As discussed above, Trump already raised seven different legal defenses in attempting to dismiss the indictment. The court’s rejection of these arguments for purposes of throwing out the case, however, does not mean that Trump cannot try to persuade the jury that certain of those defenses are valid. As also described above, DANY filed a motion in limine to preclude Trump from arguing selective prosecution, and Trump filed a motion in limine to preclude DANY from arguing that Trump’s personal or trust account constitute business records. The court’s rulings on these two motions will determine to what extent Trump raises these defenses to the jury.
Trump’s central legal defense to the jury will likely be that he lacked the requisite intent to commit, aid, or conceal another crime. He will argue that candidates regularly seek to prevent adverse publicity during a campaign, and doing so is not inherently wrongful. Trump filed several motions in limine to limit how DANY introduces evidence of and argues this point to the jury. Ultimately, the jury instruction for falsifying records will govern how the jury evaluates this defense and whether DANY has proven the required intent.
44. Does presidential immunity apply?
Almost certainly not, although the court has yet to rule on Trump’s pending motion.
In a March 7 motion, filed less than three weeks before jury selection, Trump asked Merchan to adjourn the trial pending the U.S. Supreme Court’s decision on presidential immunity in Trump v. United States, the January 6th federal election interference case. The Supreme Court will hear argument in that case on April 25. Additionally, Trump requested that the court preclude evidence that he describes as constituting his “official acts,” based on presidential immunity. He contends that DANY must be precluded from introducing public statements he made while president, since such statements were made within the “outer perimeter” of his official responsibilities as president, and thus cannot be offered as evidence in the case.
On March 13, DANY responded in opposition, arguing that Trump’s motion should firstly be denied as untimely. Alternatively, the court should defer ruling until a later date, prior to the end of trial. In any case, DANY rightly contends, Trump’s arguments are meritless, as has been made clear, including by an author of this Guide.
The Motion is Out of Time
Merchan can deny Trump’s motion on procedural grounds as too late. As DANY’s opposition notes, “[a]s a threshold matter, [Trump]’s immunity argument is untimely, and can be rejected at this stage on that basis alone.” Trump’s motion was made months after the court-imposed September 2023 deadline for omnibus motions, after the February 22 deadline for motions in limine, and just weeks before trial.
Trump has long been aware of DANY’s case against him which he now claims has immunity implications (because the case makes explicit reference to a 2018 pressure campaign and conduct and statements made while he was in office). The proper time for Trump to have advanced a presidential immunity argument was in summer 2023, when he sought to remove his case to New York federal court based on a “colorable” federal defense. But he didn’t and, as such, “surrendered that claim.” In fact, Judge Hellerstein made clear—when rejecting the removal motion, which was primarily premised on, inter alia, Supremacy Clause immunity—that Trump had “expressly waived any argument premised on a theory of absolute presidential immunity.” For that reason alone, many have taken the view that Trump “should not be permitted to reopen the issue” and get another “bite at the apple.”
Not only did Trump fail to raise presidential immunity in his unsuccessful bid to be tried in federal court, he later chose to abandon his appeal before the United States Court of Appeals for the Second Circuit of Hellerstein’s ruling and has failed to raise the issue in any of his prior pretrial motions in New York state court, which has already prompted stern words from Merchan.
Trump also could have raised the issue before Justice Merchan in October 2023 when he filed a motion to dismiss before Judge Chutkan in DC, or when he appealed to the DC Court of Appeals, or even to the U.S. Supreme Court. But he didn’t. As DANY noted, “the very existence of” Trump’s immunity appeal before the Supreme Court, which he “egregious[ly]” “attempt[s] to link” with Bragg’s prosecutions, “shows that [Trump] could have raised an immunity argument months before the current motion.”
As noted by DANY, if the court does not summarily deny the motion, NY CPL § 255.20(3) allows the court to defer any ruling on the matter until anytime before the end of the trial.
The Motion Lacks Merit
The motion appears to fail on the merits because Trump’s conduct is personal or political, and is not official. With respect to Trump’s evidentiary contention that his public statements and portions of the grand jury testimony must be excluded, the motion cites no applicable authority to support why DANY should be precluded from introducing, inter alia, public social media posts by Trump. The same appears to be the case regarding evidence of alleged Trump statements constituting intimidation of Michael Cohen that just happened to have been made while president, despite having nothing to do with his official duties. Such an argument is “ridiculous … [and] the very tweets that Trump is trying to keep out of evidence also refute his argument” because they show the personal nature of his behavior.
As Judge Hellerstein ruled, Trump’s conduct at issue in this case does not constitute official presidential acts. Even if the alleged acts were within the outer perimeter of his official duties, DANY argues that there is no categorical rule in New York that would preclude the admission of evidence of official acts that are relevant to, but do not directly underpin, criminal charges for non-immune conduct.
In any case, as DANY argued, Trump’s motion raised no presidential immunity argument specific to the “actual charges in the indictment,” having already conceded in federal court that his conduct was not protected by any such immunity and having not raised anything to the contrary in subsequent motions.
It is likely Merchan will reject both the request to adjourn and the request to exclude evidence given that, as DANY makes clear, Trump’s “immunity argument is untimely raised, inapposite to admissibility, or simply meritless.”
45. Will Trump argue an “advice-of-counsel” defense?
Trump has proclaimed on social media that he relied on counsel. For example, in Jan. 2023 he declared, “I placed full Reliance on the JUDGMENT & ADVICE OF COUNCIL, who I had every reason to believe had a license to practice law, was competent, & was able to appropriately provide solid legal services … [T]here was NO reason not to rely on him, and I did.”
Asserting an advice-of-counsel defense on social media, however, is not the same as doing so in a court of law, and the judge has found that Trump has not met the requirements for advancing such a defense and will not be permitted to do so.
On February 7, 2024, Justice Merchan ordered Trump to provide “notice and disclosure of his intent to rely on the defense of advice-of-counsel by March 11, 2024, and to produce all [relevant] discoverable statements and communications within his possession or control by the same date.” The elements of such a defense are that the defendant:
- made a complete disclosure to counsel [concerning the matter at issue],
- sought advice as to the legality of his conduct,
- received advice that his conduct was legal, and
- relied on that advice in good faith.
Electing to assert the formal defense also requires the waiver of the attorney-client privilege and the production of communications normally protected by it.
On March 11, Trump filed a notice stating that he “does not intend to assert a formal advice-of-counsel defense that would require him to prove at trial” the elements of such a defense. Instead, Trump says he intends to negate unlawful intent by eliciting purported “probative” evidence proving his “awareness that various lawyers were involved in the underlying conduct giving rise to the charges,” including “the presence, involvement and advice of lawyers.” To corroborate, Trump intends to call witnesses, “including former AMI executives and Michael Cohen.” Without formal reliance on an advice-of-counsel defense, Trump contends, “there is no privilege waiver requiring production of communications protected by the attorney-client privilege, and there is no basis for the People to demand a preview of our defenses at trial.”
It appeared that Trump was trying to eat his cake and have it too, utilizing attorney advice to rebut the prosecution’s case without meeting the legal requirements for doing so. The court agreed, rejecting Trump’s distinction between “advice-of-counsel” and “presence of counsel” defenses. To allow the latter, the court reasoned, would “effectively permit Defendant to invoke the very defense he has declared he will not rely upon, without the concomitant obligations that come with it. The result would undoubtedly be to confuse and mislead the jury.”
A similar tactic was recently spurned by Judge Lewis Kaplan in the prosecution of Sam Bankman-Fried. In that case, around six weeks before trial the government sought to preclude Bankman-Fried from arguing or adducing evidence at trial regarding the “involvement of lawyers in certain events at” his two cryptocurrency firms, unless he first asserted formal notice of an advice-of-counsel defense. Specifically, the government asked Kaplan to preclude Bankman-Fried “‘from unduly focusing on the facts of attorney’s involvement’ … or ‘suggesting that attorneys blessed, for instance, the loans, bank documents, or message deletions.’” In his October 2023 opinion the day before trial, Kaplan ruled that the defense was prohibited from referring in opening statements to the presence or involvement of attorneys.
Trump referred to Judge Kaplan’s decision in attempting to distinguish between what he called a “formal advice-of-counsel defense” and an (informal) “presence of counsel” defense. Justice Merchan said Trump’s argument quoted a select portion of Judge Kaplan’s ruling but ignored the rest, including the critical findings that it was not clear how the formal and informal defenses were different and the substantial risk of jury confusion.
46. What will be the jury instructions?
Typically, the court will instruct the jury on the applicable law following closing arguments. To determine what instructions will be read to the jury, the parties and the judge will have a charging conference (also called a “pre-charge conference”) outside the presence of the jury where they discuss and litigate the applicable law and relevant instructions. Like most states and federal practice, New York has model jury instructions that serve as a benchmark for judges. There are model instructions universal to any criminal case as well as statute-specific instructions depending on the charges involved. These instructions are based on basic legal principles and rely on statutory language and prevailing case law. In some instances, there will not be a model instruction for a relevant issue, and the parties and court will have to draft the instruction based on the law. Model instructions exist for the vast majority of issues, however, and courts generally use the model instruction where possible to avoid a mistaken or confusing instruction that could create an appellate issue.
New York’s model final jury instructions include approximately 25 general instructions, covering basic issues including the role of the jury; evidence; presumption of innocence; burden of proof; reasonable doubt; witness credibility; expert witnesses; juror note taking; deliberations; electing a foreperson; and the verdict sheet.
The critical instruction will address the law on the falsification of business records. As discussed at Question 40, there is a model instruction for that crime. The wrinkle in this case will be adding instructions to explain the object crimes, discussed at Question 41, so that the jury understands the elements of FECA, New York Election Law § 17-152, and the two tax statutes that Trump is alleged to have intended to violate by falsifying records.
Starting with FECA, DANY alleges that Trump intended to violate 52 U.S.C. § 30116, which limits individual campaign contributions to $2,700, and 52 U.S.C. § 30118, which prohibits corporations from making direct contributions to a federal campaign at all. It is a crime to knowingly and willfully violate these prohibitions.
Regarding the second object crime, DANY’s theory is that Trump intended to violate New York Election Law by “entering into this scheme specifically for purposes of influencing the 2016 presidential election; and that they did so by ‘unlawful means’—including by violating FECA through the unlawful individual and corporate contributions … by falsifying the records of other New York enterprises and mischaracterizing the nature of the repayment for tax purposes.” That is, DANY contends that the “unlawful means” employed by Trump in violation of §17-152 was the commission of other crimes, namely FECA, tax fraud, and falsification of other business records.
Regarding the third object crime, there is a model jury instruction for tax fraud, as described in Question 41. Expect that instruction to be given to explain the elements of the tax laws that Trump is alleged to have intended to violate.
Complicating matters is the court’s ruling on the motion to dismiss, discussed at Question 6, in which it precluded DANY from using falsification of Cohen’s or AMI’s business records as a fourth object crime. However, the court wrote that DANY will be “permitted to present evidence at trial that stems from the fourth theory, to the extent that the evidence advances any one or more of the first three theories.” It is unclear from the court’s opinion whether DANY could satisfy its second object crime theory—violation of state election law—by arguing that Cohen’s or AMI’s falsification of records constitutes “unlawful means” prohibited by § 17-152.
SENTENCING AND APPEAL
47. If convicted, what will be Trump’s sentence?
Falsifying records in the first degree is a class E felony, punishable by a maximum of four years in prison and a $5,000 fine. Class E felonies generally carry indeterminate sentences, meaning that the court is authorized to impose a sentence within a certain range. For indeterminate sentences, the court often imposes a minimum and a maximum, with the minimum representing the amount of time the defendant must serve before being eligible for parole. For Class E felonies, the lowest sentencing range is one to three years, and the highest range is 1 ⅓ to four years. However, for defendants with limited or no criminal history such as Trump, there is no minimum sentence. A court can impose an alternative sentence of a fixed term of less than one year of incarceration, based upon the nature of the crime and the defendant’s “history and character.”
This means the judge will have discretion in imposing a sentence, taking into account the seriousness of the conduct on which Trump is convicted, the evidence at trial, Trump’s testimony, and other factors.
There is precedent for imposing a sentence of incarceration for a defendant with no criminal history convicted of falsifying records, although the cases typically include other serious charges. In 2015, an executive of a building construction company was sentenced to two days per week in jail for one year for a bribery scheme in which he falsified records to conceal improper payments to secure a client’s business. (The ringleader received a sentence of 2 to 6 years plus a $500,000 forfeiture on other charges.) In two cases in 2013, corporate executives received sentences of four and six months for falsifying records to misclassify more than $1 million of their salaries as expenses as part of a larger scheme involving bribery and fraud by their employer. And as discussed above, Weisselberg received a five-month jail sentence and five months’ probation for pleading guilty to all 15 counts, including four falsifying records counts, although the other charges included other serious offenses such as grand larceny, offering a false document for filing and scheme to defraud.
48. If convicted, does Trump have a right to appeal?
Yes. Trump can appeal his conviction and/or sentence following final judgment or sentence. NY CPL § 450.10.
All appeals, except those including a sentence of death, are made to the NY appellate division. Trump would have 30 days from judgment/sentence to file notice of appeal to the trial court. NY CPL § 460.10.
If Trump loses the first appeal, he can seek reargument before the First Department or apply for leave to appeal to the New York Court of Appeals. The decision of the First Department will not automatically be remitted to the trial court if Trump pursues these options. If he applies for leave to appeal and it is granted, the execution of any judgment can be stayed pending the determination of the appeal by the New York Court of Appeals.
49. Can the state appeal?
Yes, the state also has a right to appeal in very limited circumstances, including an order dismissing charges or setting aside the verdict. NY CPL § 450.20. The state cannot appeal an acquittal.
50. Will Trump’s conviction and/or sentence (if any) be stayed pending appeal or if Trump is reelected?
Not automatically. Trump can apply for a stay pending appeal, which can be sought from the trial court or the First Department. NY CPL § 460.50.
Should Trump assume the presidency during the pendency of an appeal, he will undoubtedly instruct his attorneys and the United States Department of Justice to argue that the U.S. Constitution requires all pending proceedings to be stayed because they interfere with his duties as president. Because no sitting president has ever been charged, much less been convicted, sentenced, and appealed, the courts have not addressed this question. The U.S. Supreme Court has, however, permitted civil proceedings against a sitting president (Clinton v. Jones) and the enforcement of criminal subpoenas (United States v. Nixon & Trump v. Vance). It remains to be seen what the Supreme Court would do with respect to a pending appeal of a criminal sentence, which would not appear to be unduly burdensome, or with respect to serving such a sentence, which presents a more profound prospect of interference with presidential duties.
– – – – Notes – – – –
- Trump’s removal petition asserted this immunity defense under the Supremacy Clause, but as Judge Hellerstein noted, he “expressly waived any argument premised on a theory of absolute presidential immunity.” ↑
- Trump’s March 8 letter seeking permission to file the motion was a result of the court’s order from earlier the same day requiring the parties to first seek permission to file new motions. The court issued that order in response to Trump filing on March 7 a motion for adjournment based on presidential immunity, two weeks after the February 22 pretrial motion deadline had passed. ↑
- Despite its name, the New York Supreme Court is actually the state’s trial court for felonies. ↑
- In November 2023, DANY filed a motion with the court to compel Trump to provide reciprocal discovery, stating that Trump had provided the prosecution with nothing he sought to rely on. There are no public court filings confirming Trump has since complied with his discovery duties, although in its opposition to Trump’s motions in limine, on the matter of expert witness Bradley Smith, DANY said that Trump “should not be permitted to evade or delay reciprocal discovery by retaining a law professor ‘as an expert consultant and witness,’…but then claiming that ‘he is not being called as an ‘expert.’” In any case, the public may not necessarily be privy to what, if any, discovery has been provided by the defense as this is not required to be filed with the court and so it likely will not be in the public record. ↑
- The Census figures do not add up to exactly 100%. ↑