Published by The Lawfare Institute
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Judge Juan Merchan of the Supreme Court of New York opens the hearing by asking both the government and counsel for former President Donald J. Trump whether there’s anything they need “to address before we conduct the arraignment.”
Christopher Conroy for the prosecution and Todd Blanche for the defense agree that there is nothing.
“Let’s arraign Mr. Trump,” says the judge.
And the court proceeds to arraign the 45th president of the United States—the first president ever to face criminal charges:
THE CLERK: Donald J. Trump, the grand jury of New York County has filed indictment 71543 of 2023 charging you with the crimes of 34 counts of falsifying business records in the first degree. How do you plead to this indictment, guilty or not guilty?
MR. TRUMP: Not guilty.
Merchan quickly turns things over to Conroy, who in a businesslike fashion thanks the judge and declares that the state is “filing with the Court and handing to counsel copies of the indictment and a statement of facts.” He also declares that he is giving defendant’s counsel a copy of Trump’s fingerprint report. And he says that the indictment was unsealed at 1:30 p.m. and given to defendant’s lawyers in advance of the hearing.
He notes that the grand jury “listened to the evidence and carefully considered the charges [and] has voted an indictment against the defendant, Donald J. Trump, charging him with 34 separate felony counts of falsifying business records in the first degree in violation of New York State Penal Law section 175.10.” He says that his colleague in the district attorney’s office, Catherine McCaw, will address discovery issues, motions, and a possible trial date. But he wants first to address “what this case is about, the defendant’s recent public statements, conditions of release, and the conflict matter [we] believe the Court should be aware of.”
Merchan allows him to proceed.
In Conroy’s telling, this case is about the fact that Trump “falsified New York business records in order to conceal an illegal conspiracy to undermine the integrity of the 2016 presidential election and other violations of election laws.” Beginning in August 2015, he argues, Trump “agreed with others to carry out an unlawful plan to identify and suppress negative information that could have undermined his candidacy for president.” He then summarizes the allegations in the indictment and statement of facts. “Defendant falsified these New York business records with the intent to defraud, including the intent to commit another crime, and to aid and conceal the commission of another crime,” he argues.
He emphasizes that “[t]his office has long prioritized protecting the integrity of business records maintained here in New York County. When those records are falsified in service of another crime, it is a felony.”
He then turns to what he terms Trump’s “recent public statements threatening our city, our justice system, our courts, and our office.” Over the past few weeks, he says, Trump “has made a series of threatening and escalating communications,” a series that has included “irresponsible social media posts that target various individuals involved in this matter, and even their families.” These statements, he alleges, have “threatened potential death and destruction ... , and World War III ... if these charges were brought and he was indicted.” Trump’s statements directly addressed the grand jury itself and ”disparaged witnesses” who had reportedly participated in the investigation. Trump has also threated the district attorney’s office, “including posting a picture that depicts Mr. Trump wielding a baseball bat at the head of the district attorney.”
Trump’s comments have required “extensive public safety measures” by “a number of law enforcement agencies” starting weeks ago.
He turns over to the court and to Trump’s counsel what he terms “several of the defendant’s recent online posts as an example” of “this kind of threatening rhetoric.” And he expresses “significant concern” about the danger Trump’s rhetoric poses “to our city, to potential jurors and witnesses, and to the judicial process.”
He insists, however, the district attorney’s office will not be deterred.
One way, he suggests, of addressing Trump’s conduct would be for the court to issue “an appropriately restrictive protective order concerning discovery materials, so that his lawyers can access the information they need to prepare a defense, while at the same time, making sure the defendant does not disseminate any information provided as discovery through threatening online posts.” McCaw, he says, will address this further. Of course, “the terms of any protective order the Court enters can ... be carefully policed through contempt proceedings and other sanctions as necessary.”
While the government is only seeking a protective order regarding discovery materials, Conroy notes that Trump’s rhetoric directed at individuals and their families “may also raise concerns about the fair and orderly administration of justice, the risks that pre-trial publicity will taint the jury pool and prejudice a fair trial, and individual and public safety concerns.” And the district attorney’s office is thus considering seeking other possible relief as well and “would be prepared to submit briefing if the Court requests.”
He then turns to the question of conditions of Trump’s release. He notes that under New York law these charges are not eligible for bail and that Trump surrendered voluntarily for processing and arraignment. He asks Merchan “to give the defendant Parker warnings”—advising him of his right to be present at trial and of the consequences of his non-appearance. “Should the defendant decide not to return to court from out of state, these warnings would help mitigate potential issues around any extradition proceeding.” He says that if circumstances change and the prosecution believes it needs modifications to the these conditions, it will bring the matter to the court’s attention.
Finally, he raises the issue of a possible conflict of interest on the part of Joseph Tacopina, one of the lawyers for Trump. “Our understanding [is that] he previously had privileged communications with Stormy Daniels, who we expect to be a witness in this case,” he says. He consequently asks for the judge to “conduct an inquiry at an appropriate time” of both Tacopina and Trump about potential conflicts arising out of this prior relationship. He says he received a letter sent by Daniels’s current counsel on Monday and would happily share it with the court and Trump’s lawyers.
And then he tries to turn things over to McCaw.
But McCaw doesn’t get her turn just yet. Todd Blanche, the former federal prosecutor whom Trump added to his defense team only yesterday, pipes up. “Your Honor, thank you,” he begins. “I didn’t realize we were going to give opening statements today. I would appreciate the opportunity to respond.”
Blanche complains that the prosecution had “ten minutes” to talk about “the strength of their case.” Yet, he continues, “this is no trial” and the defense has not had an opportunity to view discovery yet.
Then he shifts to the subject of the prosecution’s key witness: the president’s former fixer, Michael Cohen. Cohen, he complains, stood on the courthouse steps every time he met with prosecutors or the grand jury and announced exactly what he did and why he did it.
It’s true, Blanche acknowledges, that Trump has responded “forcefully” to the events of the past several weeks, and that he’s “absolutely frustrated, upset, and believes that there is a grave injustice happening.” Still, Blanche says, the prosecution’s efforts to give “their version” of the indictment today has “exacerbated” the problem.
Before Blanche can continue, Merchan interjects. The prosecutors, he clarifies, are merely “complaining about the rhetoric and the charged nature of the language that is being used” by the former president. In response, Blanche contends that Trump has free speech rights to talk about his view of what is happening in this case. And, he continues, it’s important to “step back” and realize this case has been investigated for several years. He adds that Mark Pomerantz, a former special assistant district attorney with the Manhattan district attorney’s office, wrote a whole book about the investigation, which he has publicly discussed.
Meanwhile, Blanche points out, “the president” is running for reelection as president of the United States. “I mean, imagine anybody in this courtroom that was in that position,” he urges before reiterating that this was a three-year investigation plagued by “leaks galore.” As one example, he points out that Trump only received a copy of the indictment 40 minutes before the hearing, while the media “apparently” received a copy of the indictment last night. “That is a grave injustice,” he proclaims.
Clearly, Trump is “frustrated” by all of this, Blanche continues. But his posts, he says, “are not threats, they are not harassment.” While the prosecutors may disagree with the “rhetoric,” Blanche says it is “patently unfair” to frustrate the freedom of speech of a man who is running for president of the United States.
In reply, Merchan acknowledges that Trump “does have rights.” But, he says, “I don’t believe the People are asking the Court to impose any kind of gag order.” When Blanche agrees that is correct, Merchan continues: “Certainly, the Court would not impose a gag order at this time even if it were requested.” He observes that such restraints “are the most serious and ... intolerable on First Amendment rights,” which applies “doubly” to Trump because he is a candidate for the presidency of the United States. Still, Merchan says that he doesn’t share Blanche’s view “that certain language and certain rhetoric is just by frustration.” So though Merchan won’t enter a gag order, he “would encourage counsel on both sides to speak to their witnesses and the defendant” and “remind them” to “please refrain from making comments or engaging in conduct that has the potential to incite violence, create civil unrest, or jeopardize the safety or well-being of any individuals.” Additionally, “please do not engage in words or conduct which jeopardizes the rule of law, particularly as it applies to these proceedings in this courtroom.” If this request isn’t taken seriously, Merchan warns that he would “have to take a closer look” at the option of issuing an order to restrict such speech.
McCaw now gets her turn to speak. She has three matters to address. First up is the protective order she describes herself as “in the process of working out with defense counsel.” The second issue is discovery. And the final one is scheduling.
On the protective order, she argues, “especially in light of the defendant's public comments, that a protective order is vital to insure the sanctity of the proceedings as well as the sanctity of the discovery materials.” She says the prosecution has had “a number of very productive conversations” with defense counsel on the subject and that she believes “we are very close to agreement and finalizing the language.” When “we do reach an agreement, we should be able to submit that language to the Court within the next few days, hopefully.”
The proposed order, she notes, “would have terms that would be binding not solely on defense counsel, but also on the defendant himself, and that should the defendant fail to abide by these terms, it could have the effect of being in contempt of court.” She says she wants to highlight three terms on which the defense and the prosecution have already agreed:
- Trump “may not use any of the materials the prosecution produces for any purpose other than to prepare a defense.”
- Trump “will be permitted to review certain sensitive materials only in his attorney's office, and he may not take copies of the documents” or notes on them away from his lawyers’ offices.
- Trump “may not provide the materials he receives through the discovery process to any third party, including the press, and he may not post them to social media.” She describes this third provision as perhaps the most important one.
She emphasizes that violations of these provisions would put Trump in contempt of court.
Merchan pauses at this point and asks defense counsel to weigh in on the protective order matter. Susan Necheles handles this matter for the defense. She confirms that the defense and prosecution are working on the matter and hope to reach agreement.
That said, she notes that the prosecution “in their statement of facts here have laid out what they, I assume, contend the grand jury evidence and the testimony showed.” She says it seems fundamentally wrong to her that the prosecution is “able to put out into the public a statement of what they believe the facts are and for the defense and someone who is defending his career, his reputation, everything that he’s built in his entire life for him not to be able to respond in the same manner.” So there need to be “further discussions,” but she hopes to do that “promptly.”
Merchan expresses his hope that the two sides can agree on the order “so all I have to do is sign it.”
But now Tacopina has a protective order problem. “I know the D.A. said the review by the defendant would have to be in the attorney’s office,” he says. But “that will not happen. I thought it was in the attorney’s presence. We would meet most likely at the office of President Trump.”
Merchan sees that perhaps the two sides are not that close to agreement after all. “All right,” he says. “Since you are still negotiating, I will not weigh in at this time. If you reach an impasse and you need my help in resolving anything, let me know and I’ll try to help out.”
And with that, we are on to discovery.
McCaw says that once the protective order is in place, the prosecution will begin “rolling productions of discovery.” This will take place in three phases.
- The first stage will involve grand jury minutes and exhibits, witness statements, and the like. This will take about a week after a protective order is in place.
- The second stage “will consist of subpoena compliance, other witness materials, as well as some police documents and other odds and ends.” She says this will take place within the statutorily allocated 65 days.
- The third stage will include materials like district attorney’s office email messages. She doesn’t know how long this will take.
She says the most important materials will be produced in the first and second stages, particularly the first.
As the government intends to seek a trial date of Jan. 5, 2024, and there is intense public interest in “moving this case along as expeditiously as possible,” she says the government wants to produce these materials quickly to allow ample time for trial preparation before January.
Merchan turns to Blanche, who starts by emphasizing again that this has been a long investigation and the defense has not seen any discovery so far. Trump certainly wants this whole matter behind him, Blanche says, “But to sit here and say January of 2024 is good with us when we have not seen a piece of paper yet, is I think patently unfair for us given everything that I think we know about the case from the media and from witnesses talking.” The January 2024 date is “a little bit aggressive.” The spring of 2024 might be “a more realistic plan at this point.” But Blanche admits that he’s “speculating a bit because we have not seen anything yet.”
The court agrees that it’s difficult to anticipate being ready in January having not received any discovery yet. “The message I would like to deliver is we would like to move ahead as expeditiously as possible, without undue delay. Of course, you are entitled to the discovery. You are entitled to review the discovery and make determinations there.”
McCaw next turns to the schedule. “I believe that the next step would be to set an appropriate motion schedule,” she said. She says she has a schedule of dates she is ready to propose but suspects Merchan will want to hear from the defense. And he does.
Ordinarily, Merchan tells Blanche, he would get 45 days to file defense motions. But the judge knows this is a “much more complex case,” and in recent complex cases, he has extended the motion schedule. He asks Blanche what he’s thinking. Blanche responds that “we strongly believe there will be substantive motions addressing the substantive facts of the indictment that could be dispositive.” These motions may happen only after discovery, because they may depend on material received from the government. But “to move the case along expeditiously,” he says, “there may be other motions that do not need to wait for the substantive motions several months from now after the conclusion of discovery.” For example, while the defense just got the statement of facts today, it may seek a bill of particulars. “That might also be something we need before we start going through all the discovery.”
Hence, Blanche asks the judge for an “opportunity to study the indictment beyond the half an hour or so we had so far.” And he asks for an opportunity to file motions in two parts. He says he will consult with the prosecution and the court “as we land on the specifics” with respect to timing. “So I don’t know if it is worth setting a date now, but if the Court would like to, we say at least six weeks after discovery has been concluded, and for other potential motions that we will reach out to the Court about, we would ask to have a month to file those motions or to at least inform the Court of what motions we intend to file.”
Merchan now wants to clarify how long discovery is going to take. McCaw tells him again that the government can finish the “vast majority” of the production within 65 days of arraignment but acknowledges that there might be “some additional straggler materials”—especially with respect to emails from within the district attorney’s office. She asks for the motion schedule to be set in advance, even if the motions are to be divided.
Merchan notes that 65 days from today brings the court to mid-June. He says he doesn’t want two sets of motions, and he says he means to set one motions schedule. “I think four months would be more than sufficient for you to be able to address your motions, so that would bring us out to August 8.”
Blanche offers “one caveat.” If the defense decides it needs to file a motion in advance of that, he will alert the court “and obviously your Honor can guide us.” Other than that, the court’s motions schedule works for him.
Merchan does some calculations and determines that the government’s responses would be due on Sept. 5. McCaw says if the defense is getting six weeks, she should as well for her responses, which would mean her responses should be due on Sept. 19.
But Merchan says he’s not giving the defense six weeks. He’s giving them four months from today to complete all of their motions. She asks again “if we could get six weeks from the date of the filing of their motions, in light of the amount of time they will have had to prepare the motions, we request a date of September 19.” Merchan obliges.
He now turns to the subject of the possible conflict of interest on the part of Tacopina. Tacopina asks to be heard on the subject. He states that “we received last night, for the first time, a letter from a Clark Brewster, an attorney apparently representing Stormy Daniels, that was larded with factual inaccuracies.” The most important was that “I never met Stormy Daniels. I never spoke to Stormy Daniels, and I never reviewed any documents of Stormy Daniels.” Daniels called Tacopina’s office and “tried to hire me or asked about hiring me. She spoke to an associate and paralegal. Gave some facts. Sent over a document, and it went no further than that.”
Under the ethics rules, he says, with respect to the attorney’s duty to prospective clients, “I have to be in possession of information that is significantly harmful to the person in the matter.” No such material exists. “Everything she sent us wound up in her book. So, there is not obviously any privilege, and any that existed was waived.”
What’s more, he argues, he has learned that Daniels “signed a waiver” when she turned over material to federal prosecutors. “She testified in open court about her attempt to secure representation prior to retaining Mr. [Michael] Avenatti.” Moreover, if any conflict really existed, the “remedy would be I do not participate in her examination” if and when she testifies. “There are three different law firms here. It is as simple as that.”
Now Merchan turns to Conroy for argument on behalf of the district attorney’s office on the matter: “People, what was your basis for believing there might be a conflict?”
Conroy responds that the district attorney’s office believes that Tacopina has a conflict based on a “combination” of the letter received, comments made on various TV networks, and the fact that there were “some” privileged conversations between Tacopina and Daniels. He reiterates that he merely sought to “alert” the court to the potential issue. “I think it is a real potential issue that needs to be explored,” he finishes.
Having heard the positions of both the prosecution and the defense on the matter, Merchan tells Conroy that he would “welcome” a written motion on it should the district attorney decide to file one. “In the meantime,” Merchan continues, “I do believe I have an obligation to address both Mr. Tacopina and Mr. Trump with regard to this.” He then instructs Trump of his absolute right to “conflict-free” representation. While he stresses that he is “not making any findings of fact” at this point, he informs Trump that prosecutors have alleged that Tacopina has a potential conflict because he “may have represented a former client” who is a witness in the case. “Do you understand that right, Mr. Trump?”
The 45th president of the United States responds with a single word: “Yes.”
Moving on, Merchan next announces that the state has asked him to give Trump what are called “Parker warnings”—a set of judicial admonitions provided to criminal defendants in New York state court. “This is something I do with every individual who appears before me in the courtroom,” Merchan says.
He then proceeds to inform Trump that he has a right to be present at “every stage” of the proceedings in his case. However, the judge warns Trump that there are ways he could lose or waive his rights to be present at the proceedings. Trump could, for example, “voluntarily absent” himself from the proceedings. If he does so, Merchan says, the court has the right to find that he voluntarily waived his right to be present, which could mean that the proceedings would continue in his absence. Another way Trump could waive his right to be present for the proceedings is to become disruptive to such a degree that it affects the judge’s ability to preside over the case. In that situation, Merchan warns, he would have the authority to remove Trump from the courtroom and continue the proceedings without him.
“Do you understand that?” Merchan asks Trump.
The former president of the United States and current presidential candidate answers in the affirmative: “I do.”
Having read Trump his Parker warnings, Merchan is ready to wrap up. “Now I think we need to set an adjournment date.” Trump, he continues, will be released “on his own recognizance”—that is, without bail. The judge announces that the next hearing date will be set for Dec. 4, 2023, for the court’s decisions on various pretrial motions. “If, for some reason, I’m unable to have my decisions ready or not all the decisions ready, I will certainly let you know,” he tells counsel.
Before the judge adjourns the hearing, however, Blanche pipes back up on behalf of Trump. “Judge,” he says, “I am just stating the obvious that having President Trump in this courtroom today is extraordinarily burdensome and expensive on the city,” he states. Adding that the “security issues” that needed to be worked out ahead of Trump’s appearance today were substantial, he informs the judge that defense counsel may ask that Trump’s presence be waived for future hearing dates.
“What would be the reason [for] asking to waive his appearance?” Merchan queries. In reply, Blanche again emphasizes “the incredible expense and effort and security issues that present themselves with the president traveling and being in court.”
While Merchan acknowledges that Trump’s appearance has been a “huge undertaking” for the court, he reminds Blanche that Dec. 4 is “quite a ways out.” If a reason were to come up that Trump could not appear on that date, such as something unanticipated, he says that defense counsel can run it by him then. “But in the same way I expect all other defendants to appear in court, even high profile defendants … I think in the interest of transparency and assuring the rules of law even-handedly, at this time I’m going to deny your application.”
Thanking the judge, Blanche stresses that he “was not suggesting President Trump does not want to be here.” Instead, he says, the cost of the arraignment to the city is why he brought the matter up today. “To the extent we need to, we will revisit it,” he finishes.
“What you said is true, and I agree,” Merchan responds.
Then the judge addresses the courtroom at large: “Thank you all very much.”
And with that, the first arraignment of a United States president comes to an end.