Editor’s Note: Norman Eisen is a CNN legal analyst who was former President Barack Obama’s ethics czar and impeachment counsel to the House Judiciary Committee in 2019-2020. Andrew Warren is the duly elected state attorney in Hillsborough County, Florida. Before being elected in 2016, he served as a prosecutor with the US Department of Justice. The views expressed in this commentary are their own. View more opinion at CNN.
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Contrary to the popular view that former President Donald Trump has successfully delayed accountability, this week he’s facing a one-two punch that has the potential to inflict lasting damage. All signs are that the New York criminal case brought by Manhattan District Attorney Alvin Bragg will be confirmed imminently for a start date in April, after a short pause occasioned by a last-minute federal document dump. And the civil judgment already won by New York Attorney General Letitia James is moving briskly as well, with the AG apparently set to begin seizing Trump properties as soon as Monday. This week promises to be an inflection point in both cases.
In the Bragg case, Trump is charged with covering up hush money payments he made to Stormy Daniels to keep voters from knowing about their alleged affair, out of fears that it would harm his 2016 presidential campaign. (Trump has pleaded not guilty and denies the affair.) The case had been set for trial on March 25 when a last-minute flood of thousands of documents from the files of federal prosecutors in response to a Trump subpoena led the judge to postpone the trial to mid-April and schedule an evidentiary hearing on what happened to commence Monday.
Despite some (not unusual) hiccups and characteristically vigorous delay efforts from the Trump team, we expect the hearing to conclude with an April trial date intact. If we are correct about that, Trump could finally face a criminal jury in what has been “an important case for democracy” since the grand jury filed charges nearly one year ago.
We think the details of the dispute suggest the trial date will not materially move again. On March 8, Trump accused the DA of discovery violations and worse – such as the patently absurd suggestion of working with Daniels to “hide” the release of her upcoming documentary. Trump asked the court yet again to dismiss the indictment, following earlier unsuccessful efforts, or in the alternative to preclude Daniels and Michael Cohen, his former lawyer and fixer, from testifying – which he had already previously tried and failed to do. He also sought a 90-day adjournment to review the newly produced records.
The DA’s office quickly agreed to a 30-day adjournment as sufficient to allow Trump (as well as the DA’s office) to review the well-over 100,000-page production by the US Attorney’s Office for the Southern District of New York (USAO-SDNY). The court granted this request. Then, last week, the DA’s office informed the court that the vast majority of this material was immaterial or duplicative.
As criminal law practitioners with more than a half century of experience and many trials between us, the 30-day adjournment already in effect seems more than sufficient to allow Trump a “meaningful opportunity” to review the materials in advance of trial. The DA contends that the vast majority of the records are irrelevant and that after initial review the important materials constituted fewer than 270 documents relating to one of the key witnesses (Cohen).
The DA makes a fair point with his emphatic pushback against Trump’s allegations of discovery violations. Trump – and to an extent USAO-SDNY – appears to be responsible for the timing of the production, not the DA. The DA asked SDNY for a substantial production of documents over a year ago; SDNY held back many documents. Then Trump waited until just a few months before trial before deciding to subpoena the materials – and SDNY then let loose the flood. The DA is hardly to be blamed for that.
On this record we tend to agree with the DA that “enough is enough,” and that it is time to proceed to trial. Judge Juan Merchan is quite properly allowing Trump to have a hearing and ventilate his concerns. But it appears that all of the documents have now been produced and we think that the hearing slated to begin Monday will be followed by a prompt order to proceed to trial.
Some say that this case, too, serves as an example of Trump’s success at delaying prosecution against him. But if, as we expect, the trial begins in or around mid-April, that ploy will have failed.
But that is only part of the legal trouble Trump faced last week. The second blow comes from the office of the New York attorney general, in the aftermath of her successful civil prosecution of Trump, his sons Donald, Jr. and Eric, and other Trump Organization businesses and former executives who contested the allegations. In February, following a two-month trial that ended in December with closing arguments in January, Judge Arthur Engoron brought down the hammer with a $354,868,768 judgment against Trump for a decade’s worth of lies at his organization. With interest, Trump’s final bill was approximately $454 million.
Trump apparently approached about 30 companies to secure this vast sum but found no takers. On March 18, Trump’s lawyers told the court that it was a “practical impossibility” to secure such a large bond. They asked the court for a stay, or to allow a bond of $100 million. The AG’s office responded that there is no legal justification for a stay and Trump can secure multiple smaller bonds to satisfy his judgment.
Setting aside the logistical hurdles of ponying up nearly half-a-billion dollars cash (whether directly or by obtaining a bond secured by illiquid assets), the practical reality is that the consequences of Engoron’s fraud ruling are starting to take hold. Raising this money is not going to be easy. Trump had 30 days to satisfy the February 16 judgment and, as of Monday, time is up.
James has been prepared for this possibility. Shortly after the court’s ruling, James said she would be prepared to take the appropriate legal steps to enforce the judgment, including seizing Trump’s assets, to ensure that he pays his debt to the state of New York. As promised, James is doing exactly that. Last week she filed what is in effect a blanket lien on Trump’s property in Westchester County, NY, including his Seven Springs property that was one subject of the fraud trial. The court concluded the Trump Organization valued Seven Springs on its books at $161 million despite several appraisals putting the value between $5.5 to $21 million.
In an interview, James also suggested that she was eyeing a Manhattan property, 40 Wall Street. She does not have far to look. It is adjacent to her office and she has stated that she sees it every day. It was appraised in 2015 at $540 million (although the Trump Organization inflated its value by nearly $200 million more). Moreover, as CNN has reported, a judgment has been entered as the first step in seizing Trump’s real-estate assets in New York City, where 40 Wall Street is among his various high-profile properties.
Trump’s immediate dilemma is how to come up with the money. Options include following the AG’s advice and securing multiple bonds, borrowing money from a foreign government (Saudi Arabia and Russia have been mentioned as possible creditors) or declaring bankruptcy. His social media company recently concluded a merger with Digital World Acquisition Corp., which could provide him with the financial infusion he needs, although he would have to get special permission from the board of that entity to sell or borrow against his equity.
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The bottom line, however, is that the New York attorney general is likely going to continue putting liens on Trump’s properties. And although she likely won’t evict Trump from his 30,000-square-feet Trump Tower apartment (which we now know is actually 10,996 square feet) immediately, even Trump has recognized that he may have to sell his “Great Assets” at “Fire Sale prices.”
The commonality between the criminal and civil cases in New York goes beyond the timing of these latest developments. Bragg has long articulated that his case is about corrupting an election – that is, allegedly perpetrating a fraud on the voters. That is a logical successor to the financial fraud found in the NY attorney general’s case – and a logical precursor to the conspiracies to unlawfully change the outcome of the 2020 election alleged in the DC and Georgia prosecutions.
Whatever delays may be present in those jurisdictions, or in Florida’s Mar-a-Lago documents case, in New York the former president is facing serious hits. To our mind, he is not dodging legal accountability – it has backed him into a corner and appears ready to land a hard punch, maybe even a knockout.
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