Harry Litman
The courts give, and the courts take away. And in a whirlwind couple of hours on Monday, they took a fair bit more from Donald Trump than they gave him.
The helping hand Trump got from one court, reducing the bond he had to post to protect his empire from a civil fraud penalty, was more than requited by the slap delivered by the judge poised to preside over the first criminal trial of a former president.
Trump got very welcome news Monday morning, when a five-judge panel of New York’s Appellate Division modified the bond required to stave off enforcement of the $454 million judgment that state Attorney General Letitia James secured in his fraud trial. The court cut the bond more than 60%, to $175 million, and gave Trump 10 additional days to pay, abruptly halting his mad scrounging to meet the harsh terms set by Judge Arthur Engoron.
The relief was not surprising given the division’s pro-business bent and the high stakes for Trump’s finances. The court could well have calculated that the lesser amount was good enough to ensure payment when the final judgment arrives. And it might be taken as a harbinger that the court is seriously considering reducing the penalty.
The reduced bond, which Trump indicated he would post willingly, serves James’ purposes in one respect. If Trump tries to elude collection, the attorney general will be able to immediately scoop up the $175 million before engaging in any legal combat over other portions of Trump’s empire.
Minutes after Trump got this break, however, another New York court convened a hearing that left him far worse off than when the day began.
Judge Juan M. Merchan had called the hearing to determine how much more time Trump needed to prepare his defense against charges of paying off porn star Stormy Daniels in light of material newly produced by federal prosecutors. The judge’s conclusion: not much. Merchan scheduled jury selection to begin April 15, suggesting that in one of the four criminal cases Trump faces, his strategy of running out the clock has at last come to an end.
And that wasn’t the only way in which the hearing went badly for the defendant.
Trump’s team had insisted that they needed at least three months to work through the additional material. And they alleged that the late revelation demonstrated misconduct by Manhattan District Attorney Alvin Bragg that necessitated dismissal of the entire case — employing an all too familiar Trumpian gambit of turning a workaday problem into a nefarious deep-state conspiracy.
Merchan was having none of it. The judge excoriated Trump and his lawyer Todd Blanche for making an “unbelievably serious” allegation without evidence or even a case citation. He also pummeled Blanche, a former federal prosecutor, for waiting so long to subpoena the documents from the U.S. attorney’s office.
Directly contradicting the Trump line of argument, Merchan found that the district attorney “went so far above and beyond what they’re required to do, it’s really odd that we’re even here.” Worse, he told Blanche that the dispute fit Team Trump’s months-long “pattern” of advancing an interpretation of events that “is really different from my interpretation.”
Translation from judge-speak: Your motion was so meritless as to be a waste of my time.
That sort of upbraiding from a judge before trial has even begun should chill any trial lawyer to the bone. Credibility before the court is a defense lawyer’s most important currency, and Blanche seems to have lost it, perhaps irrevocably. And he has lost it because, like so many of Trump’s lawyers, he crafted his advocacy according to the boss’ predilections rather than the demands of the case.
Moreover, Merchan’s reprimand essentially tears a crucial page out of Trump’s very thin playbook. He made it clear that he will not brook wild-eyed claims about government misconduct or selective prosecution.
The judge underscored his resolve to come down hard on such hijinks Tuesday by issuing a limited gag order against Trump. Merchan is likely only to get stricter once a jury is in place, at which point rash accusations could corrupt the proceedings.
Trump has been approaching pretrial appearances as political opportunities to vilify the prosecution. But with an actual jury trial now on the horizon, presided over by a judge whose patience he has exhausted, he will be forced to base his defense on evidence. And as in all his criminal trials, that is the last position he wants to be in.
Harry Litman is the host of the “Talking Feds” podcast and the Talking San Diego speaker series.
