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A Trial Date Certain-ish: NY Trump Case Set to Begin April 15

Tyler McBrien, Katherine Pompilio
Monday, March 25, 2024, 7:15 PM
A dispatch from the courtroom of Justice Juan Merchan, who set the date for the first criminal trial of a former president—again.
New York State Supreme Court, Criminal Term, at 100 Centre Street on March 25, 2024. (Photo credit: Tyler McBrien)

Published by The Lawfare Institute
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Previously on Trump New York Trial Dispatch: "'A Date Certain': Trump New York Criminal Trial Date Set for March 25"

It’s 9:32 a.m. in New York County Supreme Court in downtown Manhattan. We’re seated in a courtroom repurposed as a media overflow room. Just next door, in a courtroom called Part 59, other reporters await the arrival of former President Donald Trump—even as we await his arrival on closed-circuit television.

In our courtroom-cum-watch party room, it’s drafty. The blinds above us have some slats bent and broken, and they rattle against an open window. One reporter flags down a police officer monitoring the room and asks if there’s any update on whether he can close the window.

“We’re still waiting for an update on that update,” the officer replies in a line that has big “my complications had complications” vibes. It’s also a near-perfect metaphor for the situation in the case itself.

This hearing, after all, is going to be our update on the update on Trump’s New York criminal trial, which involves the former president’s alleged plot to pay hush money to adult film actress Stormy Daniels and others in the run-up to the 2016 election.

Back on Feb. 15, Justice Juan Merchan set the trial to begin jury selection on March 25, which he called “a date certain.” But then, a big update happened—and the case was delayed with no clear date set for jury selection. And so here we are, in court on March 25, not for the trial’s commencement, but instead for an update on that update: a pretrial hearing to find out if Justice Merchan is going to set another trial date and, if so, when.

Merchan’s first date certain turned out to be less than certain after District Attorney Alvin Bragg received tens of thousands of pages of documents from federal prosecutors in the Southern District of New York. Shortly thereafter, on March 4, the prosecution began to send the late-breaking records to Trump’s defense team. Four days later, Trump filed a motion to dismiss the case based on alleged discovery violations committed by the prosecution, or, short of that, a delay of at least 90 days for more time to review the “untimely” disclosures.    

On March 15, Merchan scheduled a hearing for March 25, the date the trial was to have started, to resolve “significant questions of fact” regarding the discovery saga and ordered a 30-day trial adjournment.

Back in Part 59, the prosecution team files in and takes its seats on its side of the courtroom. Ten minutes later, Bragg himself and an associate enter and sit in the gallery. At 9:58 a.m., Trump and his defense team enter the courtroom; the former president sits beside one of his lawyers, Susan Necheles, adjusts his red tie, spreads two documents out before him, interlaces his fingers, and places them atop the pages.

At 10:05 a.m., all rise for Justice Merchan in the case of The People of the State of New York v. Donald J. Trump

Our window is still open, and the slats are still rattling.

The judge starts with the People, and Matthew Colangelo rises to introduce himself and his colleagues, Assistant District Attorneys Joshua Steinglass, Susan Hoffinger, Christopher Conroy, and Rebecca Mangold.

Across the aisle, Todd Blanche rises for the defense and introduces himself and his team. His mouth is moving, but we can’t hear anything. Realizing what’s happening, Blanche fumbles at the podium for a moment and manages to switch on the microphone—an IRL version of the “you’re muted” Zoom faux pas.  

“Good morning everyone,” says Merchan, adding, “Good morning, Mr. Trump.”

The judge begins with an account of the events that preceded the hearing, starting with the defense’s March 8 pre-motion letter seeking permission to file a motion for discovery sanctions based on the People's alleged violations of Criminal Procedure Law, Article 245, and the motion itself, which seeks dismissal of the case or an adjournment of at least 90 days.

He reads slowly and deliberately, citing precise page numbers and betraying no favor toward either side. His serious tone appears intended to match the gravity of the allegations. “The motion,” Merchan continues, “accuses the People of engaging in serious discovery violations.”

Merchan proceeds to summarize the document. On page 1, he says the defense alleges that the prosecution has engaged in “widespread misconduct as part of a desperate effort to improve their position” and “in improper and unethical actions.” The prosecution collected some material, the defense alleges, but left other material with the federal authorities with the hope that the defendant would never get them. Conduct alleged on page 2, Merchan continues, constitutes a “blatant discovery violation,” and page 3 suggests that “the People have been far more than passively complacent in the suppression of evidence.” On page 4, the defense accuses the prosecution of improperly invoking federal law and federal immunities.

Merchan now comes to page 5, which, he says, “finally and vitally” implicates “extremely serious issues relating to prosecutorial misconduct and discovery violations that are specifically geared to interfere in the 2024 Presidential Election.” But that’s not all. Page 14 accuses the prosecution of engaging in a “strategy to hide the truth and to obstruct defendant's efforts to obtain evidence.”

Having underscored the gravity of the defense’s allegations leveled at the prosecution, Merchan continues to lay out the events of the past two weeks. On March 14, the prosecution filed notice of the Southern District of New York’s production of records, which ultimately amounted to 73,000 pages on March 4, 31,000 pages on March 14, and a final tranche of 15,000 records the next day.

Merchan references another letter, also from March 15, in which the “defendant asserts that it is an affront to this Court and a violation of defendant's rights for the People to attempt to make the Court complicit in their unethical strategy.” He puts a fine point on the latter allegation of his own complicity, concerned at the “significant questions of fact” that exist between parties.

The judge now shifts from the slow methodical tone with which he has recounted the timeline of events to a quicker, more conversational one. He lays out the three questions before him:

  1. Who, if anyone, is at fault for the late production of documents?
  2. What prejudice, if any, was suffered by either party? and
  3. What sanctions, if any, are necessary to remedy the problems identified?

“This Court stressed that the hearing will be limited to the specific issue of defendant's Motion to Dismiss on the grounds of the People's alleged discovery violations related to the production of records by the Southern District only,” he adds.

Ahead of today’s hearing, both parties had filed submissions with the court. In its submission, the prosecution presented two principal arguments against allegations of discovery violations. First, the prosecution argued that there could be no discovery violation because the U.S. attorney’s office materials are not part of the prosecution’s disclosure obligations in the first place. And second, despite not having such an obligation, the prosecution nonetheless “had engaged in good faith and diligent efforts to obtain relevant information” from the U.S. attorney’s office. 

Turning to the defense’s submission, Merchan for the first time hints at displeasure. “Despite this Court’s clear instructions, defendant’s affirmation, timeline, and exhibits went far afield from the clearly stated purpose of this hearing,” he says.

After having reviewed these documents, the judge amends his previous concern, stating his opinion now that there really aren’t significant questions of fact to be resolved. “The facts are what they are and the exhibits support that,” he says. Instead, in an almost epistemological aside, he adds that what’s really in dispute here is “how we choose to characterize the nature and scope of these facts and the data provided” by the U.S. attorney’s office. 

Having thoroughly recapped why we’re all here, Merchan opens the floor. “Counsel, it’s your motion,” he says to Blanche. “You can go first.” 

Blanche mentions that just last night, shortly before midnight, the defense learned that the Southern District of New York was granting a Touhy request—one made of official information for litigation purposes, including witnesses and documents, when the government is not a party to the litigation—and would furnish both parties with additional documents related to Stormy Daniels.

“I appreciate your bringing that to my attention,” Merchan cuts in. “But I don’t think it’s related to this hearing, thank you.”

Colangelo rises, only to agree with the court on the non-relevancy of the Tuohy documents, and says that the government is prepared to discuss the other records and its analysis of them.

Merchan, sitting back in his chair, announces to the attorneys that he has reviewed all of the records produced in recent weeks while the trial was adjourned. “Like all of you, I wish I had a little more time, but I did review them,” he adds.  

Turning first to Blanche, he asks why the defense didn’t bring any of this to the judge’s attention when they last met on Feb. 15, even though the defense made its request to the Southern District of New York on Jan. 19.

Blanche asserts that the process was ongoing, and maintains that, at the time, there was nothing to bring to the court’s attention. He offers additional reasons, perhaps too many, because Merchan cuts him off and says, “It’s just a question.” 

Merchan now addresses a question to both parties: Out of all of the documents received from the U.S. attorney’s office, how many of those were relevant to this case?

Colangelo answers that, while the government’s analysis is ongoing, “the number of relevant, usable new documents is quite small” and “in the neighborhood of 300 or fewer records.”

A stone-faced Trump leans back in his chair and glances at Blanche, who says, “We very much disagree.” He emphasizes the “tremendous amounts” of records produced, which include bank statements during the time period charged in the indictment and after, but Merchan interrupts him.

The judge wants a number: “Why don't you just tell me, in your opinion, how many of these documents are there?”

“Thousands and thousands,” Blanche responds in an exasperated tone, referencing the bank records again as well as interviews between the witness and the FBI.

“Is this the Mueller investigation?” asks Merchan, cutting off Blanche again. 

“Yes,” responds Blanche.

“That’s not relevant,” Merchan fires back. “What does that have to do with this case?”

“Your Honor—,” Blanche starts. 

“It has nothing to do with this case,” says Merchan. 

“It’s absolutely relevant to this case,” Blanche ping pongs back. 

“I decide if it is relevant and I am telling you, you try to introduce something from the Mueller investigation, it is not coming in,” Merchan responds sharply.

Blanche doubles back, promising that he’s not offering anything from the Mueller investigation but, instead, several pages of interviews in which Michael Cohen discussed the nature of his duties with President Trump during the charged conduct. Again, the judge is just looking for numbers here. Blanche mentions 4,000 emails, and Merchan inquires what they’re about. “We haven’t gone through them yet,” responds Blanche.

Merchan raises his eyebrows, as if to express his incredulity at Blanche claiming that emails he hasn’t yet read are relevant to the case. The judge leans forward and emphasizes the weight of the claim that the defense has just made. “But you made representations to this Court, and this Court relied upon those representations,” Merchan says. “It was based on those representations that I agreed to adjourn the trial 30 days to have this hearing .... So I think it is fair for me to ask, give me a little bit more.”

Blanche, reviewing documents on the table in front of him, asserts that the relevant documents include emails between Cohen and others from just before Trump took office, along with others. He explains to Merchan that the defense can’t just take the prosecution’s word for how many relevant documents are in question. 

“Well, that’s why I am asking both of you,” responds Merchan. 

Blanche tries to switch gears by raising another issue but the judge seems determined to get a number out of him.

“How many relevant docs?” asks Merchan, cutting Blanche off once again.

“I think probably—let me look for one minute,” Blanche trails off, seeming to come to the realization that only some firm number or range of numbers will satisfy Merchan’s persistent request. But again, Blanche hedges: “Your Honor, I mean, thousands.” 

“Two thousand? Twenty thousand?” the judge asks again. Blanche begins to walk through all the difficulties related to reviewing these documents again, but Merchan waves him off: “I understand there are logistical issues. That’s why I'm asking you to give me an actual number. I’m just asking for a ballpark.”

Finally, Blanche offers one final, unsatisfactory response: tens of thousands. A ballpark—in the major leagues.

Colangelo rises to push back on Blanche’s large ballpark estimate with an accounting of the government’s own estimate. First, out of the 172 pages that comprise Cohen’s new witness statements, Colangelo asserts that all but one were not in the possession of the U.S. attorney’s office. Of the 91,327 pages of additional documents, Colangelo says that 56,261 consist entirely of records from Sterling Bank and are therefore irrelevant. The ballpark continues to shrink. Another 35,000 pages relate to First Republic Bank, of which only two are unique and relevant. All told, the prosecution envisions a much smaller ballpark, perhaps one in the minor leagues—or even the little leagues.

Merchan now asks the prosecution to clarify a footnote in its March 18 memorandum of law—footnote 6 on page 25, to be precise. Colangelo explains that the footnote was intended to explain that by producing all of the bank records that make up the bulk of materials in the U.S. attorney’s multiple productions, the government was not acknowledging or agreeing that it had already assessed them to be relevant, as the defense had contended.

“To the contrary,” Colangelo continues. “We’ve now assessed them and, as I’ve described, we think that 99 percent of them are not relevant.”

Directing another question to the prosecution, Merchan asks Colangelo to respond to allegations made by the defense on pages 8 and 9—specifically the claim that the prosecution was actively suppressing discoverable material. 

“We are absolutely not suppressing materials,” the lawyer says flatly. “We are fully complying with all regulations. If and when we come across discoverable materials, we disclose it.”

Merchan goes on to list specific examples of potentially discoverable materials that the defense alleges the prosecution neglected to disclose. Among these, Merchan explains, is a binder of documents that Cohen talked about on the “Michael Cohen’s Beatdown Club” podcast Patreon feed. According to the defense, says the judge, the documents in that binder were given to Cohen by the district attorney’s office and are therefore subject to discovery.

Colangelo asserts that the documents in the binder were all publicly available materials and therefore not discoverable. Blanche remains seated; he does not contest the prosecution’s assertion.

Moving on, Merchan now poses a question to the defense. He recalls that between the dates of Feb. 7 and Feb. 14, 2024, the defense and the U.S. attorney’s office were trying to schedule a phone call. “Seems like a long time,” he remarks. “Did it take seven days to schedule a phone call?”

Blanche, looking confused, reviews some documents before him and confers with other members of the defense. He asks the judge to specify which exhibit he’s getting this information from. “The People’s timeline,” Merchan clarifies. “Did it take seven days to schedule a phone call?” 

“No,” Blanche responds. “These were two phone calls.” He explains that the defense responded to the U.S. attorney’s office within “minutes and hours.”

Merchan poses another question to the defense. “One of the main arguments that the defense is making is that the reason … why the People’s conduct constitutes a discovery violation is because they had violated Article 245, and specifically 245.20.”

New York Criminal Procedure (CPL) § 245.20 pertains to automatic discovery in state criminal prosecutions. Merchan characterizes it as the statute requiring that “the entity that the People are trying to get that information from be under the control of the People.” At issue are the first two subsections:

  1. Initial discovery for the defendant, which requires the prosecution to disclose all items to the defendant and permit him or her to “discover, inspect, copy, photograph and test” all information in the prosecution’s possession that is relevant to the case; and
  2. duties of the prosecution, which asserts that the prosecutor must make a “diligent, good faith effort to ascertain the existence of material or information discoverable under subsection one” and to ensure that such material or information “be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control.”

Merchan reminds the defense that it submitted case law saying that by not obtaining material from the FBI or the U.S. attorney’s office, the People violated § 245.20. The justice then asks the defense to cite specific case law that supports the claim that, under § 245.20, the prosecution was required to obtain documentation from the U.S. attorney’s office or the FBI, or that the U.S. attorney’s office and FBI are “under the authority and control of the district attorney’s office.”

Blanche pushes back and asserts that the U.S. attorney’s office and the FBI were certainly not under the control of the district attorney’s office. “It is not our contention,” he says. 

“That’s very confusing to me,” Merchan snaps. “You actually offer a complete analysis of Article 245. The impression is and what I was led to believe is that the People had violated 245.20 (1) because they had not obtained these materials from the U.S. attorney’s office.” (Remember that 245.20 (1) deals with initial discovery for the defendant.)

After reading the statute aloud to the defense, Merchan continues, “So you agree with me that the U.S. attorney’s office does not fall within that category?”

Blanche stumbles, and sorts through some papers on the desk before him. “Your Honor, with the caveat, as we put in our papers, that, if you look at the communications that both parties agreed to starting in 2019—”

But Merchan interrupts again, “Can you give me a single case—one case—that stands for the proposition that the U.S. attorney’s office is under the prosecution’s discretion or control?”

“I don’t have a case that says that exactly,” Blanche says.

Merchan interjects again. “If you don’t have a case right now, it’s really disconcerting, because the allegations that the defense makes in all of your papers about the People’s misconduct is incredibly serious—unbelievably serious.”

His voice raises, and a chorus of clacking keys swells in tandem as the gallery reporters’ typing intensifies. “You’re literally accusing the Manhattan district attorney’s office and the people assigned to this case of engaging in prosecutorial misconduct and of trying to make me complicit in it and you don’t have a single cite to support that position.”

The judge is referencing the defense’s March 15 letter, in which the defense team wrote:

The People compounded their discovery violations by opposing that request—strenuously, and based on federal principles they have no valid interest in invoking—in a failed effort to deny President Trump access to discoverable material and prevent the truth from coming out at the proceedings Your Honor is presiding over. Seeking to make the Court complicit in that unethical strategy was an afront [sic] to Your Honor and a violation of President Trump’s rights. [emphasis added]  

Blanche remains seated, perhaps realizing he has crossed a line with the suggestion of Justice Merchan’s complicity. Trump shifts in his seat.

But Merchan presses forward. After reviewing the evidence, he says, he finds that the U.S. attorney’s office and the district attorney’s office “never, during the course of their respective investigations, collaborated in any way, shape, or form on their either investigation[.]”

“There is simply no link,” Merchan says with some finality. He announces his final question. “Is it defense’s position that the U.S. attorney’s office knowingly retained information that should have been turned over to the prosecution and was requested?”

Blanche regains his footing and finds his gesticulations once again, as he replies, “No. It’s that the People never asked.” Blanche continues and lists a number of exchanges between the prosecution and the U.S. attorney’s office regarding the production of materials. “There’s a relationship,” he says, “where all the People had to do was ask the FBI or ask the Southern District for materials. They never did beyond saying the limited number of materials that they needed to seek an indictment in this case, which is nothing like what 245.20(2) requires of them.”

Merchan poses a question to the defense: “When did the People make their first production to you?”

“Last summer, Your Honor, in May.”

Merchan heads him off, reestablishing the timeline. “At that time—and shortly thereafter—you knew or suspected that there were documents that you had not received that existed and you know—” 

Merchan now changes tack and interrogates Blanche’s CV to make a point. “You’re a former AUSA, right?” Blanche responds in the affirmative. 

“In that office?” Merchan asks, referring to the Southern District.

“Yes,” says Blanche. 

“How many years?” asks Merchan.

Blanche likely sees where Merchan is going with this, but he dutifully answers the judge’s question: four years as a paralegal and nine as a prosecutor. 

“So, you were there for 13 years,” Merchan replies, “So you know that the defense … has the same ability as the prosecution to obtain these documents. So, when you received the People’s first production … you could have very easily done exactly what you did in January, but for whatever reason you waited until two months before trial.”

Blanche begins to speak, but Merchan interjects: “Why did you wait two months before trial? Why didn’t you do it in July?”

Blanche argues in response that they were “very much going through” the 11 million pages of discovery that were produced. But Merchan pushes back, “Why wouldn’t you, at that time, knowing—13 years in the office—what it would take to do it, how you would have to go about it, and how long it might take?”

“It’s not our job to get it—,” starts Blanche, but Merchan cuts him off.

“It’s not the People’s job, either,” the judge fires back, reiterating the prosecution’s obligation under 245.20(1). “All I have to find or all the People have to show is that they exercised due diligence and made genuine efforts, but there’s nothing in the law anywhere that prevents the defense from also doing exactly what you did [and] could have done back in June.”

“Your Honor, respectfully, that is not true,” Blanche replies. “There’s a much broader obligation on the People than just look around their office, right?” Merchan cocks his head and raises an eyebrow at this last remark, perhaps interpreting a flippant tone from Blanche. 

As Blanche explains how, in his view, why the People did not exercise due diligence and reasonable efforts in the discovery process, Merchan peppers in a few lines of disagreement. “That’s not what the record shows,” he says at one point, shaking his head. “That’s contrary to the record,” he says at another point.

Finally, as Blanche continues along this path, Merchan offers a warning, “Be careful where you go with this, Mr. Blanche.” 

Blanche says that the prosecution had conversations with the Southern District. “How did those communications start?”

“The Southern District provided the People—”

“Exactly!” Merchan interjects, and then throws his hands up and asks rhetorically, “Were the People supposed to just say, we are not going to do anything, we are not going to say, we are not going to speak up?’

Blanche does not take this to be a rhetorical question. “You’re Honor, absolutely,” he replies, his voice slightly raised and animated.

“They’re a law enforcement agency—are they supposed to just stick their heads in the sand and ignore it?” Merchan asks rhetorically. This time, Blanche interprets the question as such, “No. They should have gotten the information on their own,” he replies. “They didn’t ask a single question of the Southern District after the grand jury material was produced. Not a single phone call, email, meeting[.]”

“That is a far cry from the People injecting themselves into the process and vehemently and aggressively trying to obstruct your obtaining documentation. It’s just not what happened,” Merchan replies.

After another brief back and forth with Blanche, Merchan wants to hear from the prosecution.

The People raise two points: First, the defense’s argument that the Tuohy request could not have been made earlier because they needed to exhaust their efforts to obtain the information from other sources doesn’t hold water, and second, the prosecution certainly conducted due diligence in the discovery process, despite the defense’s allegation. Colangelo points to the People’s efforts to receive materials from the U.S. attorney’s office after months of communication with them, even preparing and sending over their own draft pleading for the Southern District of New York to file in federal court.

“Short of actually suing the federal government, Your Honor” Colangelo adds, “I don’t know how we could have developed a more fulsome record of our diligent efforts to coordinate with the federal law enforcement agency to get evidence that we believe they had that might inform our investigation.”

Blanche characterizes this as a double standard and again sets out his own interpretation of the facts. “The People concede and admit that they are coordinating and working with their law enforcement partners in the way that they believe is appropriate and we do not believe is sufficient.”

With the promise of a break right around the corner, Merchan makes a parting observation—a months-long pattern in which he reads or hears certain information and comes away with a very different interpretation than Blanche. He continues, speaking directly to Blanche:

You read one statute. I read the same statute and you come away with a very different meaning of it. You just heard one set of facts and interpreted that as the People not doing anything. I heard that set of facts. I looked at the exhibits, and to me it was the People went so far above and beyond what they were required to do that it is really, it is odd, that we are even here and that we have taken this time.

Blanche remains seated; he seems to be running out of ammunition.

At 11:13 a.m., Justice Merchan calls for the promised recess. All rise as the judge retires to his chambers, and the former president mills about with his defense team before also exiting the courtroom.  

Nearly forty-five minutes later, at 11:57 a.m., Trump takes his seat as he beckons Blanche, who kneels down to listen to the former president. They speak only for a few minutes, and Blanche too takes his seat.

Minutes pass. The battered blinds bang against the open window. A reporter in the gallery has pulled out a novel to pass the time. 

At 12:09 p.m., all rise as Justice Merchan returns to the bench. The hearing now having passed the twelve o’clock mark, he greets us with a “good afternoon.”

He recaps the purpose of the hearing: Who, if anyone, is at fault for the late production of documents from the U.S. attorney's office; what prejudice, if any, was suffered by either party; and what sanctions, if any, are appropriate?

Seemingly satisfied by the answers given at the hearing to those three foundational questions, Merchan issues a ruling from the bench.

The court finds that the district attorney is not at fault for the late production of documents; the People have complied with their discovery obligations; the U.S. attorney’s office is not under the prosecution’s direction or control; the district attorney made good-faith efforts to ascertain the existence of discoverable material and make it available; the defendant will not suffer any prejudice; and jury selection will commence on April 15.

Blanche rises to respond, treading more carefully now than before the recess, asking the court to grant the defendant’s request to file a motion for adjournment with respect to the pretrial publicity as it relates to this case. 

The prosecution seems to expect this and quickly offers three objections to the defense’s as-yet-filed motion. First, Colangelo says, publicity will not abate anytime soon. Second, publicity has been exacerbated by the defendant—which elicits the first and only light chuckles of the day. And third, other tools exist, including jury selection practices, that can address such concerns without further delaying the trial.

After some deliberation, during which Blanche waits with crossed arms, Merchan says he will allow it. He grants the defense’s request to file the motion and lets the prosecution know they’ll have a week to respond.

“Alright, see you all on the fifteenth,” Justice Merchan concludes, gaveling the hearing to a close at 12:16 p.m.

And with that, the date is set for the first criminal trial of a former president—again.

Read the next Trump New York Trial Dispatch, "Seven Down, Eleven to Go in NY Trump Trial Jury Selection"

Tyler McBrien is the managing editor of Lawfare. He previously worked as an editor with the Council on Foreign Relations and a Princeton in Africa Fellow with Equal Education in South Africa, and holds an MA in international relations from the University of Chicago.
Katherine Pompilio is an associate editor of Lawfare. She holds a B.A. with honors in political science from Skidmore College.

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