Manhattan prosecutors responded Wednesday to former President Trump’s attempt to get his hush money criminal case dismissed ahead of trial, pushing back on Trump’s contention that he is being selectively prosecuted and other arguments.
Trump has mounted a multi-pronged defense to the indictment, arguing prosecutors impermissibly singled him out for political reasons, the charges were legally deficient, the counts were redundant and the case was brought too late.
“Defendant’s motions to dismiss the indictment and for other relief mischaracterize the factual record and disregard controlling law,” prosecutors wrote in their response.
A hearing over the dismissal motion is scheduled in Manhattan for Feb. 15, and Trump’s team has indicated he will attend in person. If the case moves forward, a trial is currently slated to begin March 25.
Manhattan District Attorney Alvin Bragg (D) charged Trump in late March with 34 criminal counts linked to hush money payments made ahead of the 2016 election to former adult film star Stormy Daniels and former Playboy model Karen McDougal to cover up allegations of previous affairs.
The charges marked the first indictment against a former U.S. president, and Trump has since been indicted in three other cases. He has pleaded not guilty to all of the 91 criminal counts he faces.
Each count of falsifying business records corresponds to an invoice, check or general ledger entry Trump allegedly made to reimburse his then-fixer, Michael Cohen, in part for making the payment to Daniels. Trump has acknowledged the reimbursements but insists the entries were legal.
“Defendant is alleged to have lied in New York business records over and over to conceal the truth about his involvement in an illegal conspiracy to undermine the integrity of the 2016 presidential election,” Bragg’s office wrote. “A grand jury decided based on the facts and the law to charge defendant with felony crimes for his conduct. This case should now proceed to trial.”
In Trump’s dismissal motion, he contended he is being selectively prosecuted, with his lawyers describing the case in court filings as “extraordinary and unprecedented” while Trump regularly rails against prosecutors and others involved on social media, claiming the cases are politically motivated to keep him out of the White House for a second term.
“The offenses defendant is charged with committing are routinely prosecuted by this Office, and this prosecution is based on defendant’s conduct, not on any impermissible considerations,” Bragg’s office wrote. “Indeed, defendant has consistently raised meritless claims of selective prosecution against plaintiffs and prosecutors—including against this Office and courts have uniformly rejected those arguments. This Court should do the same.”
Trump’s lawyers further argued the indictment should be dismissed because Trump did not act with an “intent to defraud,” he did not have an intent to commit or conceal other crimes and the records in question were not business records of an enterprise — all elements prosecutors must prove beyond a reasonable doubt at trial.
“[E]ven if the records did not reflect the Trump Organization’s condition or activity—which they do—the grand jury could still reasonably conclude that they were business records of an enterprise under the Penal Law, because they were also the records of the Trust and defendant himself,” prosecutors pushed back in court filings. “The evidence is sufficient to establish that both the Trust and defendant himself are each an enterprise.”
Trump also argues the charges were brought too late because they normally would be subject to a five-year statute of limitations.
Prosecutors in their new filing cite two reasons for why that timeline should be extended: executive orders issued during the pandemic by then-New York Gov. Andrew Cuomo (D) modifying legal deadlines and a state law that provides extensions when a defendant “was continuously outside this state.”
Trump’s legal team has argued neither of those exceptions apply, noting his whereabouts were meticulously tracked during his presidency.
“Defendant’s contention that he ‘was not—and could not be—difficult to apprehend’ during the limitations period because his whereabouts were well known during his presidency…is both inconsistent with his prior litigation position and legally irrelevant,” Bragg’s office wrote.
The latest batch of filings from prosecutors also indicates the former president’s legal team served Cohen — Trump’s former personal lawyer who made the payments — with a subpoena asking for “all documents and communications … that are stored on any medium.”
Cohen is expected to be a witness in the New York criminal case, which will now proceed in state court after Trump’s legal team dropped its bid to move the case to federal court earlier this week. Cohen testified against Trump in the former president’s ongoing civil fraud trial last month. The pair have been rivals since Cohen flipped on his former client after he was convicted of crimes linked to his work for Trump.
Prosecutors argued in the filing that the court should quash the “extraordinarily broad” subpoena, suggesting that without a protective order barring Trump from disseminating any recovered information, the subpoena is tantamount to “witness intimidation and harassment.”
Bragg’s office noted death threats they received, as well as those allegedly levied against other prosecutors and judges involved in Trump’s cases. Prosecutors also referenced Trump’s recent attacks on his former White House chief of staff, Mark Meadows, after a report emerged he took a plea deal in another of former president’s criminal cases, and Trump’s suggestion that former Joint Chiefs of Staff Chair Mark Milley should receive the death penalty.
Trump’s New York criminal case is scheduled to head to trial March 25, though that date could change if it conflicts with any of the former president’s other legal woes — in particular, his federal case over efforts to subvert the 2020 election results set for a March 4 trial.
The Hill has reached out to Trump’s lawyer for comment.