The potential delay of Donald Trump’s federal criminal trial on charges of conspiring to interfere with the 2020 election raises a little-discussed possibility: His first criminal trial could be held in Manhattan on state charges.
Earlier this year, a New York grand jury indicted the former president for falsifying documents to cover up a $130,000 hush money payment to porn actress Stormy Daniels before the 2016 election. Silencing that scandal helped get him elected. It was a preview of Trump’s efforts to steal the 2020 election — except that in 2016 he succeeded.
It’s possible that Trump’s appeals in the D.C. case won’t be resolved before March 25, when Manhattan District Attorney Alvin Bragg’s prosecution is set for trial.
Unquestionably, it would be best for the D.C. trial to go first. The grand jury’s indictment concerns an attempted crime against the nation that we saw in real time … and while Trump was the president. It’s yet to be proven in court, but it has to rank as the greatest presidential betrayal of the nation in history.
But the D.C. trial going first may not be in the cards. In that case, with Trump’s new appeal of two denied motions to dismiss the Jan. 6-related prosecution, the law required Judge Tanya Chutkan to stay the prosecution last week pending appellate disposition.
Trump’s appeal is legally fraught, to put it kindly — less an attempt to win than to delay. Special counsel Jack Smith has moved on all fronts to expedite the appeals. He may well succeed and get that case tried on March 4 as scheduled, or shortly thereafter.
But it’s possible that Trump’s appeals in the D.C. case won’t be resolved before March 25, when Manhattan District Attorney Alvin Bragg’s prosecution is set for trial. Bragg previously has been sensitive to the priority of Smith’s Jan. 6-related prosecution and he could ask to delay the New York trial. But guessing at an appellate decision date in a related case is not the province of prosecutors. Bragg’s duty is to try the Manhattan grand jury’s indictment as scheduled.
For all who believe in Trump’s legal accountability for his actions leading up to and on Jan. 6, disappointment will be natural if the D.C. case can’t go first. Fortunately, the consolation prize is nothing to sneer at. While some observers have minimized the significance of the New York prosecution, there’s far more to it than meets the eye.
Bragg’s case is the story of a cover-up that may have gotten Trump, the man who would be king, into the Oval Office.
Bragg’s case is the story of a cover-up that may have gotten Trump, the man who would be king, into the Oval Office. The New York grand jury has charged Trump with falsifying business records to cover up the scandal that he kept from voters four weeks before his 2016 election. The buried story of Trump’s infidelity with Daniels may well have changed history.
Lest you think, “Ho, hum, nothing but sex there,” context always matters. At that stage of Trump’s political life, he still needed to hide who he was. Voters were not yet entirely inured to his indecency. If not hushed, the revelation would have come immediately on the heels of Trump’s “Access Hollywood” tape scandal, which led his own running mate to consider stepping down from the ticket. That’s why Trump didn’t authorize a $130,000 payment to buy her silence until after the Access Hollywood tape surfaced. Once it did, he knew that one-two punch could knock out his presidential ambitions.
Had the affair become public, there may well have been no 30,000 lies during four years in office, no family separations, no Rudy Giuliani defaming innocent women, no Jan. 6. There would have been no Trump 2024. Democracy’s regret for that may be eternal.
Good prosecutors will explain all these things and more to a jury. They will be heard across America. At its heart, the mission of the law is to protect people. Prosecutors will explain how, at the ground level, the prohibition on falsifying business records protects honest competitors, ordinary citizens and the state from fraud. But to ensure that the jury sees the forest and not just the trees, Bragg’s team will also explain that the people for whom justice is sought are the people of America. In 2016, voters were shortchanged on the right to cast presidential ballots with full information on exactly who one candidates was. Buying a sex partner’s silence weeks before an election was a crime against democracy, and falsifying business records was but a continuation of that crime. Bragg and his prosecutors will make crystal clear to the jurors that they will be deciding a case of profound significance for the nation. No one should give up hope that an early resolution of Trump’s federal appeals will block his attempts to manipulate the judicial process. But if it turns out that they stall his D.C. prosecution for more than four months, there is a strong Plan B. All of us should be grateful to Bragg and to the New York grand jury: If they hadn’t put an important criminal trial of Trump on the docket, we would be without a crucial backstop to guard against Trump’s sordid legal strategy.
Dennis Aftergut
Dennis Aftergut is a former federal prosecutor, the former chief assistant city attorney in San Francisco and currently counsel to Lawyers Defending American Democracy. He signed LDAD’s December 2021 and States United Democracy Center's October 2021 bar disciplinary complaints against John Eastman.
Laurence H. Tribe
Laurence H. Tribe is University Professor of Constitutional Law Emeritus at Harvard University. The views expressed here are his own. 
