Trump has bemoaned the fact that he is required to be at a long trial in Manhattan, estimated to last at least six weeks. The criminal trial, as all know by now, involves his hush money payoff to a porn star or interference with an election, however you want to look at it.
Trump whines that he cannot hit the campaign trail in the swing states. He has even given things a sly new twist, calling the trial, rather than the underlying facts, “an election interference case.”
“The case is a sham,” said Trump. “This is a trial that should have never been brought,” he griped in the courtroom hallway Tuesday morning, adding, “I should be right now in Pennsylvania, in Florida, in many other states, in North Carolina, Georgia, campaigning.”
Trump, as is often the case, misleads. There really should be no legal obstacle to his giving the trial a pass and hitting the campaign trail, or luxuriating on the golf course at Mar-a-Lago. Trump need merely make a motion under New York Code of Criminal Procedure §340.50 to have the court dispense with the requirement that he be present. And his lawyers know how to make motions.
New York law is plain that Trump does not have to be at the trial. The relevant section reads:
On motion of a defendant represented by counsel, the court may, in the absence of an objection by the people, issue an order dispensing with the requirement that the defendant be personally present at trial. Such an order may be made only upon the filing of a written and subscribed statement by the defendant declaring that he waives his right to be personally present at the trial and authorizing his attorney to conduct his defense.
In New York, the prosecution is called “the people.”
Retired Harvard Law Professor Alan Dershowitz, a sometime member of the Trump defense team, was quick to pile on, arguing that, “There’s no reason why the prosecution should object to that [Trump missing court dates], except that they want to engage in election interference.” Dershowitz concededly spoke from ignorance, admitting that “I don’t know if his lawyers have made that motion, but they surely should.”
Curiously, they never have.
In fact, Trump is present at the trial because he wants to be, and he needs to be for reasons apart from his campaign to win the 2024 presidential election. He needs to be because it would be suicidal before the jury for him not to be. Imagine prosecutors trying the case to an empty chair. What an adverse impression that would make on the jury! A conviction would be a near certainty, as it was in the first E. Jean Carroll defamation trial, which Trump did not see fit to attend.
Bad enough that no member of Trump’s family — not Melania, not Donald Jr., not Ivanka, not Eric, not Tiffany, not Barron — is present in the court room. But a criminal trial to a jury without Trump’s presence? Unthinkable. Ask any good criminal defense lawyer — he or she will tell you it’s like playing Hamlet without the ghost.
Of course, the prosecutor could object to Trump’s wanting to blow the whole thing off, and insist that the former president be present. But how could he be heard to object? And on what grounds? The right to be present is a right of the defendant, not of the people. Were District Attorney Alvin Bragg to object, it would really look as if he were trying to keep Trump from campaigning.
Trump has called the trial a “witch hunt,” and has used campaign money to pay his lawyers to defend what he called a “political prosecution” by Biden and the Justice Department. His lawyers sought to run that one in front of the jury, but Judge Merchan has ruled the “political prosecution” argument out of the case.
But Trump has not moved to be excused from the requirement that he be present. All he has done is stand in front of the cameras and lie about it.
Trump has been known for years as the master of delay in litigation. Delay has been central to Trump’s bag of tricks in Florida and the District of Columbia, where he hopes to run the clock out until after the election when, if elected, he could self-pardon or order his attorney general to drop the cases. In New York, he sprinted to the appeals court three times in one week in an effort to put off the trial. And three times the higher court slammed the door in his face.
Trump’s lawyers in Washington, Florida and most recently in Georgia spend their energies drafting a plethora of pretrial motions, sifting the indictments for anything that would throttle the process with responses, hearings, rulings and appeals.
In the New York case, if Trump is truly salivating to hit the campaign trail, he could readily shorten the trial by agreeing to stipulate to the documentary evidence. Getting documents into evidence is time consuming but important. Lawyers call it laying the foundation. In my experience, laying the foundation usually bores the jury to tears. They want to see eyeball-to-eyeball star witness for the people, Michael Cohen, and hear former Playboy model Karen McDougal, as well as the pièce de la résistance, Stormy Daniels. After all, a sigh is more than just a sigh. But, according to the Washington Post, Trump’s legal team has decided not to stipulate to anything and to fight over everything.
It is hard to impeach the testimony of documentary evidence, the mute witnesses establishing the falsification of business records. But Trump’s lawyer Todd Blanche in his opening statement disparagingly called the people’s evidence “really just pieces of paper.” And so we beat on.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
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