NEW YORK – Donald Trump is now 0 for 3 in last-minute attempts to get a New York appeals court to delay his looming hush money criminal trial. An appeals court judge Wednesday swiftly rejected the latest salvo from the former president’s lawyers, who argued he should be on the campaign trail rather than “in a courtroom defending himself” starting next week.
Trump's lawyers had asked the state’s mid-level appeals court to halt the case indefinitely while they fight to remove the trial judge and challenge several of his pretrial rulings, which they argue have seriously hindered the presumptive Republican nominee's defense.
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Justice Ellen Gesmer’s ruling, after a third straight day of emergency hearings on Trump’s delay requests, was yet another loss for Trump, who has tried repeatedly to get the trial postponed. Barring further court action, the ruling clears the way for jury selection to begin next Monday.
“We’re here for this stay because there are restrictions in place that cannot operate in a constitutional way in a trial environment,” Trump lawyer Emil Bove argued at the hearing, which was held in a court basement lobby because the regular courtroom was in use.
“It’s an incredibly important trial. It’s a historic, unprecedented proceeding,” Bove said, adding: “This can only be done once and it must be done right.”
Trump’s hush-money case is the first of his four criminal indictments slated to go to trial and would be the first criminal trial ever of a former president.
Adding to a litany of complaints registered this week with the appeals court, Bove argued that trial Judge Juan Merchan “exceeded his authority” in refusing to postpone the case until the Supreme Court rules on an immunity claim Trump raised in another of his criminal cases. Trump's lawyers argue some evidence in the hush-money case could be excluded if the Supreme Court rules in his favor.
Merchan last week declared that request untimely, ruling that Trump’s lawyers had “myriad opportunities” to raise the immunity issue before they finally did so in March, well after a deadline for pretrial motions had passed.
Steven Wu, the appellate chief for the Manhattan district attorney’s office, echoed that sentiment at Wednesday’s emergency hearing. He argued that Trump's lawyers had months to raise immunity and other issues and should not be rewarded with a delay at the eleventh hour.
“Staying the trial at this point would be incredibly disruptive,” Wu said. “The court, the people, witnesses have made extraordinary efforts to make sure this trial can take place on Monday.”
“There’s a powerful public interest to ensure this criminal trial goes forward,” he added.
Gesmer presided over the emergency hearing from an armchair, facing a hodgepodge of wooden seats, a collapsable table and a restroom.
Trump is accused of falsifying his company’s records to hide the nature of payments to his former lawyer and fixer Michael Cohen, who helped Trump bury negative stories during his 2016 campaign. Cohen’s activities included paying porn actor Stormy Daniels $130,000 to suppress her claims of an extramarital sexual encounter with Trump years earlier.
Trump pleaded not guilty last year to 34 felony counts of falsifying business records. He has denied having a sexual encounter with Daniels. His lawyers argue the payments to Cohen were legitimate legal expenses.
Trump already struck out twice this week with the appeals court. One appeals court judge Monday rejected his bid to delay the trial while he seeks to move it out of Manhattan. A different judge on Tuesday denied a request, framed as part of a lawsuit against Merchan, that the trial be delayed while Trump fights a gag order imposed on him in recent weeks.
Trump's lawyers had asked Merchan last month to adjourn the New York trial indefinitely until Trump’s immunity claim in his Washington, D.C., election interference case is resolved.
Trump contends he is immune from prosecution for conduct alleged to involve official acts during his tenure in office. His lawyers have not raised that as a defense in the hush-money case, but they argued that some evidence — including Trump’s social media posts about former lawyer Cohen — is from his time as president and should be excluded from the trial because of his immunity protections.
The Supreme Court is to hear arguments in that matter on April 25.
"This is a situation where a judge has exceeded his authority under circumstances with very, very serious federalism implications,” Bove argued at Wednesday's emergency hearing.
Trump's lawyers also renewed their argument that Merchan should step aside from the case. They've accused him of bias and a conflict of interest, citing his daughter’s work as the head of a firm whose clients have included President Joe Biden, Vice President Kamala Harris and other Democrats.
Trump's lawyers filed a formal recusal request with Merchan last week. The judge rejected a similar request in August and has not ruled on Trump’s pending request. The judge has also yet to rule on another defense delay request, which claims that Trump won’t get a fair trial because of “prejudicial media coverage.”
“Their recusal arguments are completely meritless," Wu argued.
Trump's lawyers also took issue with a protocol Merchan put in place last month to manage a flood of last-minute court filings. And, they revisited their complaints — aired at an emergency hearing Tuesday — about the gag order Merchan imposed on Trump last month that bars him from making public comments about witnesses, jurors and others regarding their connections to the case.
Trump’s ability to campaign "is something that’s protected under the First Amendment, for President Trump and the American people,” Bove argued.