Don’t Piss Off The Judge

By seeking a trial delay in bad faith, Trump’s legal team burned valuable capital with Judge Merchan.

Image of the Hon. Juan Merchan, by Reuters

There were legal fireworks in a Manhattan courtroom yesterday as lawyers for Donald Trump sought to delay his trial for another 90 days.

Trump’s first criminal trial was supposed to have started yesterday. But Judge Juan Merchan agreed to push back the start date to address a motion from the defense to dismiss the entire case or to give a big 90-day extension to the defense.

The reason for the delay was this: Around March 1, District Attorney Alvin Bragg received tens of thousands of pages of documents from the federal government, specifically from prosecutors in the Southern District of New York. On March 4, his office began transmitting the documents to Trump’s legal team, which then cried foul and filed a motion to dismiss based on “prosecutorial misconduct,” or barring that, a 90-day continuance to give them time to review the documents.

To buttress their argument, the defense claimed that under New York law, the state was obligated but had failed to obtain tens of thousands of documents from the federal government that were relevant to Trump’s defense. 

But it didn’t take long for Judge Merchan to take apart the defense’s ploy to cause delay for delay’s sake. Those watching and reporting from the courthouse uniformly observed that 1) Judge Merchan walked very seriously through the arguments by the defense, and then 2) gutted Trump’s lawyer, Todd Blanche, in front of the whole world.

In today’s piece, and because I do enjoy watching liars and bad faith litigants destroyed and humiliated, I’ll recap some of the best moments from yesterday’s hearing. I’m relying on first hand accounts from the amazing team at Lawfare and other legal analysts in the courtroom including Norm Eisen and Katie Phang. I’ll then add a few words about why this is very much not how Trump’s team wants to be heading into trial in just over a couple of weeks.

The claims and the stakes

Judge Merchan took the allegations of prosecutorial misconduct very seriously. Upon hearing of the federal document trove, he took the trial date off calendar and even suggested that a trial would not be necessary if what the defense was claiming was true.

“The motion,” Merchan noted, “accuses the People of engaging in serious discovery violations.”

He noted the defense alleged that the prosecution engaged in “widespread misconduct as part of a desperate effort to improve their position” and “in improper and unethical actions.” The prosecution obtained some materials from the federal authorities, the defense alleged, but left other materials unobtained, hoping that the defendant would never get them. The defense claimed that “the People have been far more than passively complacent in the suppression of evidence,” a move that was “specifically geared to interfere in the 2024 Presidential Election.” The defense accused the state of engaging in a “strategy to hide the truth and to obstruct defendant's efforts to obtain evidence.”

Judge Merchan also cited a letter from defense counsel in which they wrote 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.”

You would assume that no party would come to court and make such a serious motion without plenty of facts and law to back it up. And if you suggest that the Court itself has been made complicit in an illegal strategy, you had really better be prepared to prove it.

Alas for Trump’s attorneys, they seem to have grown accustomed to making wild and baseless accusations for the sake of causing drama and delay. We’ve seen it in the election cases, in the civil tax fraud case, and now here in the falsifying business records criminal case.

Judge Merchan came prepared to get at the truth.

“I did review them.”

The defense should have known it would be rough going when Judge Merchan provided this rather startling reveal: While the trial had been adjourned since March 15, he had actually gone through the more than 100,000 pages of documents that the U.S. government had turned over.

“Like all of you, I wish I had a little more time, but I did review them,” he said.

Ruh-roh. 

He then wanted to hear from the parties directly about how many of these documents were actually relevant. The difference in responses was striking. 

Said the prosecution, “The number of relevant, usable new documents is quite small.” It was “in the neighborhood of 300 or fewer records.”

”We very much disagree,” said Blanche, his client shooting him a glance. Okay, then, the judge says, give me a number. 

“Thousands and thousands,” Blanche responded, and then began to reference bank records and FBI witness interviews related to the Mueller investigation. But Judge Merchan wasn’t interested in all that, saying the Mueller investigation has nothing to do with the case and is irrelevant. So Blanche pivoted and came back with “4,000 emails.” The judge asked what they are about, and then this happened:

“We haven’t gone through them yet,” Blanche admitted.

Record scratch moment. It is quite something to claim that documents are highly relevant to the case and warrant dismissal for prosecutorial misconduct when you haven’t even reviewed them yourself.

Judge Merchan, of course, had taken the time to review them. Eyebrows raised and leaning forward, he pressed the point that Blanche had represented to the court that the documents were relevant to the case, and on those representations the judge had taken the trial date off calendar to address very serious allegations of discovery misconduct.

And now defense counsel was in court saying he hadn’t even reviewed the emails?!

Judge Merchant asked again, how many relevant documents. Blanche responded, “thousands” and Judge Merchan got annoyed. “Two thousand? Twenty thousand?” Blanche responded with “tens of thousands”—but the game was up. He didn’t really know.

Contrast that with the state’s reply, which is worth noting in full. Here’s Lawfare’s summary of the representation by Matthew Colangelo of the DA’s office:

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. 

Colangelo backed up his claim of “less than 300” with deadly precision. Judge Merchan walked through some instances where the defense claims relevant materials were withheld, but Colangelo was prepared and proved that these were all publicly available materials that the state had no obligation to turn over on its own. Blanche, his face matching his name, said nothing in response.

“You don’t have a single cite to support that position.”

The question of relevance already went about as badly as it possibly could for the defense. But the day got worse.

Defense counsel had argued that the state had violated its obligations under New York Criminal Procedure Section 245.20, which generally requires that whatever entity the state is trying to obtain documents from actually be under the control of the state. The defense maintained that, by not obtaining the documents from the FBI and the office of the U.S. Attorney, the state had violated this section.

The problem here was obvious. How is it that the FBI and the U.S. Attorney’s office are under the control of the state of New York, such that failure to obtain and provide documents from those entities becomes a violation?

With some prodding, Blanche wound up admitting that he has no case that supports the proposition that the FBI or the U.S. Attorney’s office is under the control of the state for purposes of the discovery obligations under Section 245.20:

Judge: “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?”

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

Now the judge’s hackles were raised, as was his voice.

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.

Even Trump shifted in his seat, realizing his lawyer is a total loser.

“You’re a former AUSA, right?”

Judge Merchan drove one final nail in Blanche’s coffin. He pointed out that the state had made its first production of documents in the summer of 2023, and that therefore Blanche long knew or suspected that there were documents the defense had not received. And yet he sat on his motion and sprang it last minute.

The exchange, reported by Lawfare, was remarkable, because it either showed Blanche was incompetent or that he was intentionally trying to delay the case.

Judge: You’re a former AUSA, right?

Blanche: Yes.

Judge: In that office? (referring to the SDNY)

Blanche: Yes.

Judge: How many years?

Blanche: Four years as a paralegal, and nine as a prosecutor. 

Judge: So, you were there for 13 years. 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.

As Phang noted, “Judge Merchan is visibly ANGRY.”

Merchan zeroed in on this curious fact: Defense counsel had asked back in February for the trial to be delayed, but Blanche didn’t bring up the allegedly missing documents then, even though he was aware of them.

“Why didn't you bring any of this to my attention? Why didn't you tell the court or anyone in the courtroom at that time that you had made this request, that it was taking a little longer than you expected?” Judge Merchan asked. “So how come you didn't bring them up?” 

How come indeed.

“Blache appears frazzled,” Phang reported.

Burning capital

In their failed attempt to create delay, as legal analyst Norm Eisen points out, the defense burned a lot of capital with the judge. He now will look skeptically at every motion, every assertion, and question whether there is any evidentiary basis for it. When you show the judge that you are unserious, make wild accusations without basis, and appear willing to play games to cause delay and chaos, the judge will put you on a tight leash. 

Here, as Eisen told CNN, the judge was “clearly frustrated that Donald Trump and his lawyers made legal and factual claims that were unfounded. Actually it wasn’t even close to making out a case to postpone this trial.” Judge Merchan used words like “disconcerting,” and “misleading” to describe what the defense had attempted. While he is a “very mild mannered judge,” he was “visibly angry” and “stared Todd Blanche in the eye.” 

Defendants achieved a 20-day delay, which isn’t significant in any larger sense. But Blanche has lost much of his credibility, and the judge created a solid record of that that will also read poorly on any appeal. This is a very big hole to dig out from, and Blanche had better start showing up prepared and not file any more frivolous, attack-dog motions. 

With a client like Donald Trump, that may prove impossible. But from what we witnessed on Monday, Judge Merchan, who has already presided over the Trump Organization criminal tax fraud case, one that ended in a conviction, appears more than ready for any defense shenanigans. And as Eisen reminded us, this is the judge who will preside over the case and sentence Trump if he is found guilty.

For his part, Trump seems unwilling to accept the reality that his first criminal trial is actually going to begin in 20 days and there is little he can do to stop it. After the hearing, the defiant former president once again claimed, without basis, that this state criminal matter was a politically motivated case where the strings were being pulled by the Biden White House. He also vowed to appeal the ruling setting the trial date, but that’s wholly up to the judge, and such an appeal isn’t going anywhere.

As Judge Merchan noted at the close of the hearing, when he announced his decision from the bench, “See you all on the 15th.”