For months, former President Donald Trump has disparaged Manhattan District Attorney Alvin Bragg’s case against him as no big deal, even though it concerns what Bragg calls interference with the 2016 election via an alleged cover-up of hush money payments. Now, though, it seems Trump has changed his mind: Just weeks before the trial is set to begin, he is suddenly attempting to delay the proceedings. In a new filing, Trump has asked the court for an adjournment pending the U.S. Supreme Court’s ruling on presidential immunity in the federal election interference case.
Judge Juan Merchan should reject this attempt. Already, he has issued a stern order scolding Trump for his inexplicably late filing. The many flaws in Trump’s frantic last-minute tactic give the judge a host of reasons to reject it: Trump long ago waived this argument in the New York case; even if he hadn’t, no theory of absolute presidential immunity would apply to the purely personal and political conduct at issue.
Trump should not be allowed to revive the immunity issue for no apparent reason other than to delay his imminent criminal trial.
Trump long ago had his chance to make the immunity argument at the proper time and he blew it. That was when he attempted to remove the case to federal court and had to articulate his federal defenses as the basis for doing so. As U.S. District Judge Alvin K. Hellerstein explained in rejecting Trump’s removal bid, Trump “expressly waived any argument premised on a theory of absolute presidential immunity.” He should not be permitted to reopen the issue.
Trump instead advanced a more limited immunity argument under the supremacy clause, which prohibits state law from overriding federal law. Trump argued that the state prosecution would interfere with his federal office, because engaging Michael Cohen to assist him in dealing with the Stormy Daniels matter was “taken solely because he was President of the United States.” Hellerstein rejected that argument on its merits, holding that “the conduct charged by the Indictment” is not even remotely related to presidential duties. Trump initially filed a notice of appeal of Hellerstein’s decision, but withdrew it months ago.
And that should be the end of it. He lost on the immunity issue before the Southern District of New York, abandoned his appeal and failed to raise the issue previously in pretrial motions before Merchan in New York state court. Trump should not be allowed to revive the immunity issue for no apparent reason other than to delay his imminent criminal trial.
Trump suggests that the Supreme Court’s agreeing to hear the Jan. 6 case somehow changes the situation. It doesn’t. As an initial matter, the fact remains that every single judge who has ever ruled on Trump’s claim to absolute presidential immunity has rejected it. It has never been a close question whether, as Trump’s theory would have it, a president can, say, order the assassination of his political opponents and then hide behind his constitutional office when prosecutors come to hold him responsible after he leaves office.
Even Trump’s most expansive claims of immunity do not extend to purely private conduct he took while he happened to be president. Nothing about this case counts as a president’s “official acts.” Trump was not yet president when the alleged payments to Stormy Daniels were made in 2016 by Cohen, and the entries allegedly falsely made to cover up the payments were entirely personal and political. As Hellerstein explained, presidential immunity does not apply to this decidedly unpresidential conduct.
Trump’s immunity argument at the Supreme Court has nothing to do with the admissibility of evidence.
Indeed, Trump does not seriously try to argue that he is immune for the conduct charged. Instead, he argues that the prosecution should be barred from introducing public statements he made while president even as evidence against him on charges that he appears to concede are not covered by his invented immunity. In the meantime, he wants the New York court to wait for the Supreme Court to rule.
But Trump’s immunity argument at the Supreme Court has nothing to do with the admissibility of evidence. The court was clear about that in framing the question it granted review to answer: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” Trump’s filing does not even try to explain how the court’s decision on immunity from prosecution could affect the only thing that he’s actually asking of the court in New York: to refuse to admit tweets and other similar evidence. There is an even deeper mistake in his argument. None of the tweets or other public statements that Trump claims should be protected are official acts. This is not a close question. Trump points to the prosecution’s pretrial motion, which seeks to introduce evidence of Trump’s “attempts to dissuade witnesses from cooperating with law enforcement because such evidence shows [Trump’s] consciousness of guilt and corroborates his intent.” Trump wants Merchan to rule that any alleged intimidation of Michael Cohen from cooperating with prosecutors was part of his job as president. That’s ridiculous. In fact, the very tweets that Trump is trying to keep out of evidence also refute his argument. For example, on May 3, 2018, Trump tweeted: “Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign, from which he entered into, through reimbursement, a private contract between two parties, known as a non-disclosure agreement, or NDA.” Trump himself said that the payments were a private contract. He can hardly argue now that tweeting about that private contract was his official responsibility under Article II of the Constitution. This latest meritless motion is just another iteration in Trump’s incessant strategy to delay his day of reckoning. At least in New York, this tactic is wearing thin. In that order issued scolding the former president, an exasperated Merchan gave the prosecution until Wednesday to respond. Even more importantly, he required both sides to ask permission to file any more motions before the trial starts on March 25. That date has been set for weeks. There is no reason to change course now.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Eric Rieder
Eric Rieder is a senior litigation partner with Bryan Cave Leighton Paisner in New York. 
