Specifically, the Manhattan DA wants to know who Trump’s lawyers plan to call to the stand to rationalize the former president’s hush money payments to porn star Stormy Daniels—and Trump’s lawyers don’t want to say.
After nearly three months of the DA asking, prosecutors have formally requested that Justice Juan Merchan intervene, complaining that the former president is sabotaging their ability to prepare for the historic trial—and possibly setting up roadblocks with only four months to go.
DA Alvin Bragg Jr. hit the real estate tycoon with 34 felony charges earlier this year over the way Trump hid his hush money payment in the weeks before the 2016 election, a blatant attempt to keep the porn star from tarnishing what ultimately became a successful presidential campaign. Since then, Merchan has warned Trump—who lashed out against the judge’s own daughter—to temper his vitriolic threats, and both sides have been gearing up for trial.
But court filings show that it’s not going well.
Prosecutors say Trump’s lawyers ignored two months of emails starting in August, refusing to respond to their repeated requests that the defense team identify who in the world they’re planning to call at trial. Those experts would, in theory, justify how Trump orchestrated a two-step cover-up that involved having close associate Michael Cohen transfer $130,000 to silence Stormy Daniels, then faking Trump Organization business records to pay him back as supposed “legal fees.”
The DA’s entire case rests on the idea that Trump faked business records, which is normally a misdemeanor but only get bumped up into more serious felony status because it was done to hide another crime: a violation of election law.
It’s a theory that already got hearty support from a federal judge who brushed away Trump’s attempt to yank the case out of state court—sending it right back to Merchan.
Judging by the Trump strategy laid out in court documents so far, any expert his lawyers call will likely claim New York’s election law doesn’t actually relate to federal positions. Defense lawyers have conceded that New York “contemplates… federal elections under certain circumstances,” but they lean heavily on the notion that the state statute refers to “public office”—while the term “public officer” is elsewhere “defined by reference to jobs ‘of the state.’”
Any Trump expert also would attempt to back up the defense team’s argument that the hush money wasn’t technically a campaign contribution, because he would have paid her off anyway—potentially to keep it from ruining his marriage to Melania Trump and avoiding the insanely costly New York tabloid billionaire divorce.
And if that idea doesn’t work, they plan to point out that the DA didn’t go after 2016 rival and eternal enemy Hillary Clinton after the Federal Elections Commission last year concluded that she essentially violated the same rules—when she didn’t properly disclose the money her campaign spent on the opposition research that resulted in the Trump-Russia “Steele dossier.”
In any case, prosecutors want to know who’s going to testify on Trump’s behalf and what they plan to say—the most basic stuff.
Susan Hoffinger, chief of the Manhattan DA’s investigations division, initially emailed three of Trump’s lawyers on Aug. 24 to share some items prosecutors plan to use at trial—and remind them that they blew their deadline to do the same the previous day.
“As such, the People request that Defendant comply with his reciprocal discovery obligations,” she wrote, specifically asking them to identify any expert witnesses.
But in court filings, prosecutors say Trump’s lawyers didn’t respond to several follow-ups—until Oct. 20, when the billionaire’s attorneys essentially said: You first.
“The defense obligation only kicks in once the People have completed their discovery obligations,” Gedalia M. Stern finally shot back.
He was referring to a gripe that he and fellow Trump lawyers Susan R. Necheles, Steven Yurowitz, Todd Blanche, Emil Bove, and Stephen Weiss had listed in a court filing weeks earlier. Prosecutors want to reference 33 books about Trump at trial—and Trump’s lawyers don’t want to comb through all of them.
“DANY did not produce these books in discovery, and it has not specified the specific parts of the books that the prosecutors believe are relevant and will be used at trial. The court should order DANY to disclose those specifications,” Blanche and the others wrote on Sept. 29.
But prosecutors say that excuse only appeared five weeks late. And now it’s been three months since the deadline.
It appears that Justice Merchan hasn’t yet weighed in. Publicly available court records don’t show any judicial order on file.
Prosecutors now warn that this kind of hiccup could muddy up the busy months ahead. Trump is already drowning in legal trouble, currently wrapping up an extremely lengthy bank fraud trial in the civil courthouse next door. And come the new year, the top-ranking Republican presidential primary candidate will be busy with the Iowa caucuses, followed by elections in Nevada, Michigan, and South Carolina.
In his Nov. 9 memo seeking the judge’s help, assistant district attorney Matthew Colangelo said he expects a fight over whatever witnesses Trump intends to call—and that could take some time too.
“Further delaying the required disclosures will hinder the People’s ability to prepare for trial,” he wrote. “Delaying defendant’s expert disclosures risks burdening the court with late motions… to exclude expert testimony.”