Last week, Donald Trump filed a new motion to delay his Manhattan prosecution for falsifying business records to cover up an election interference scandal before the 2016 election. The new filing is so pathetically weak that NBC Legal Analyst Lisa Rubin called Trump’s new motion the “Hail Mary to end all Hail Mary’s.”
Trump’s desperation to avoid criminal accountability is showing. With the 2024 election looming, he doesn’t want America to know whether 12 ordinary jurors think he committed crimes connected to his 2016 cover up. It’s the crux of Manhattan DA Alvin Bragg’s election interference case.
Back in October 2016, mere weeks before the presidential election, Trump hid from voters his alleged one-night stand with adult film star Stormy Daniels. He feared the scandal would derail his wobbling campaign in the days immediately following the release of the infamous “Access Hollywood” tape. In it, Trump said that as a celebrity, he could do anything he wanted to women, including to “grab them by the p***y.”
So Trump made a hush money payment to Stormy Daniels via his then-lawyer Michael Cohen. Trump feared that, if released, Daniels’ story would be a one-two punch that could TKO his presidential prospects. Eight years later, he now has the same concern about a jury verdict in the case.
Once an election interferer, always an election interferer.
To keep voters from seeing that, Trump wants the 2016 election interference prosecution in New York “adjourned” – that is, delayed for weeks or months — pending the Supreme Court’s decision on presidential immunity in the federal prosecution for his attempt to overturn the 2020 election.
Let’s look at three weaknesses in Trump’s newest attempt at using delay to keep from the voters information they want about his guilt or innocence.
First, he doesn’t and can’t make a direct immunity claim like he has in Jack Smith’s January 6 case in DC. In New York, he surrendered that claim last year when he unsuccessfully sought to “remove” the case to New York federal court in an early attempt to delay the prosecution.
The problem was that his “removal” claim was based on exactly the same argument as his potential “immunity” claim, and he lost the argument in federal court. You only get one bite at the apple when you fail making a legal argument and the ruling becomes final.
Trump had argued in seeking removal that when he wrote checks to Michael Cohen in 2017 to reimburse him for his 2016 payments to Stormy Daniels, and when he mischaracterized those reimbursements as “legal fees,” he was acting in his official capacity as president. Last July, federal district court judge Alvin Hellerstein rejected that borderline frivolous claim, ruling that Trump was acting personally, not as president.
There went Trump’s more valuable, even if legally weak, claim that he was immune from prosecution for writing the checks because he was performing an official presidential function.
Trump and his lawyers apparently realized their error too late. In November, they dropped their appeal of Judge Hellerstein’s decision like a steaming potato left too long in the microwave. Nonetheless, dismissing the appeal didn’t salvage the claim for purposes of a future assertion of immunity.
That’s why Trump’s present motion is a bank shot aimed at the same side pocket. Trump’s new motion says that while he may not be immune, any statements that he made while president are “immune” from being used against him – as if presidents are divinely anointed so that every word they utter while in office is surrounded by a halo of untouchability.
Now there’s a clunker of a legal argument. Trump’s motion cites no authority – because there is none – for the preposterous proposition that in a case where a former president has waived immunity, his statements cannot be used against him. It looks very much like he’s trying to renew a claim that he has already surrendered.
Second, even if there were some authority suggesting that a president’s official statements could not be introduced against him in a trial, Trump’s motion fails to cite any statement that relates to his official duties. Every statement he cites is connected to covering up a sex scandal for the purpose of interfering with the 2016 election.
“Hush money paid to an adult film star,” as Judge Hellerstein wrote, “is not related to a President's official acts.”
Third, Trump failed to submit or give notice of his motion by February 22, the deadline the New York court set for submitting all pretrial motions. Ten days earlier, Trump had already filed for a Supreme Court suspension of his DC election interference trial pending review of the immunity claim to which he now hitches his new, fabricated argument in New York. At that point, if he wanted to preserve his right to raise this new claim in the New York court, he should have alerted it that he would be filing the new motion if the Supreme Court agreed to consider his claim of immunity.
Let’s be honest. Trump’s real target is not Judge Merchan but the U.S. Supreme Court, where he can always count on votes from reactionary Justices Clarence Thomas and Samuel Alito. A stay motion, however, takes votes from five Justices.
Trump getting five votes would not be shocking after the court’s recent action reading the Disqualification Clause of the Fourteenth Amendment out of the Constitution to keep insurrectionist Trump on the Colorado ballot, and after the court’s decision to hear the immunity case. Even so, Trump’s new motion in New York is so lame that action by the court granting Trump more delay would effectively cripple its last claim to legitimacy.
The nation needs a Supreme Court that preserves what little right to public trust it has remaining. Call us naive, but we are hopeful that Trump’s ridiculous new plea for delay will fail to get five justices’ votes, and his New York trial will start as scheduled on March 25.
