A detailed summary by Anna Bower, Benjamin Wittes, Wednesday, April 5, 2023

Judge Juan Merchan of the Supreme Court of New York opens the hearing by asking both the government and counsel for former President Donald J. Trump whether there’s anything they need “to address before we conduct the arraignment.”

Christopher Conroy for the prosecution and Todd Blanche for the defense agree that there is nothing.

“Let’s arraign Mr. Trump,” says the judge.

THE CLERK: Donald J. Trump, the grand jury of New York County has filed indictment 71543 of 2023 charging you with the crimes of 34 counts of falsifying business records in the first degree. How do you plead to this indictment, guilty or not guilty?

MR. TRUMP: Not guilty.

(A complete transcript can be found at the link above, excerpts follow)

Christopher Conroy: the case ... this case is about the fact that Trump “falsified New York business records in order to conceal an illegal conspiracy to undermine the integrity of the 2016 presidential election and other violations of election laws.”

Beginning in August 2015, he argues, Trump “agreed with others to carry out an unlawful plan to identify and suppress negative information that could have undermined his candidacy for President.”

“Defendant falsified these New York business records with the intent to defraud, including the intent to commit another crime, and to aid and conceal the commission of another crime,” he argues. “This office has long prioritized protecting the integrity of business records maintained here in New York County. When those records are falsified in service of another crime, it is a felony.”

Christopher Conroy: threats Over the past few weeks, he says, Trump “has made a series of threatening and escalating communications,” a series that has included “irresponsible social media posts that target various individuals involved in this matter, and even their families.” These statements, he alleges, have “threatened potential death and destruction . . ., and World War III . . . if these charges were brought and he was indicted.” Trump’s statements directly addressed the grand jury itself and ”disparaged witnesses” who had reportedly participated in the investigation. Trump has also threatened the district attorney’s office, “including posting a picture that depicts Mr. Trump wielding a baseball bat at the head of the district attorney.”

Todd Blanche: defense ... “Your Honor, thank you,” he begins. “I didn't realize we were going to give opening statements today. I would appreciate the opportunity to respond.”Blanche complains that the prosecution had “ten minutes” to talk about “the strength of their case.” Yet, he continues, “this is no trial” and the defense has not had an opportunity to view discovery yet.

“the President” is running for reelection as President of the United States. “I mean, imagine anybody in this courtroom that was in that position,” he urges before reiterating that this was a three-year investigation plagued by “leaks galore.” As one example, he points out that Trump only received a copy of the indictment 40 minutes before the hearing, while the media “apparently” received a copy of the indictment last night. “That is a grave injustice,” he proclaims.

Judge Merchan .. Trump “does have rights.” But, he says, “I don’t believe the People are asking the Court to impose any kind of gag order.” When Blanche agrees that is correct, Judge Merchan continues: “Certainly, the Court would not impose a gag order at this time even if it were requested.” He observes that such restraints “are the most serious and . . . intolerable on First Amendment rights,” which applies “doubly” to Trump because he is a candidate for the presidency of the United States. Still, Judge Merchan says that he doesn’t share Blanche’s view “that certain language and certain rhetoric is just by frustration.” So though Judge Merchan won’t enter a gag order, he “would encourage counsel on both sides to speak to their witnesses and the defendant” and “remind them” to “please refrain from making comments or engaging in conduct that has the potential to incite violence, create civil unrest, or jeopardize the safety or well-being of any individuals.” Additionally, “please do not engage in words or conduct which jeopardizes the rule of law, particularly as it applies to these proceedings in this courtroom.”

If this request isn’t taken seriously, Judge Merchan warns that he would “have to take a closer look” at the option of issuing an order to restrict such speech.

McCaw: process First up is the protective order she describes herself as “in the process of working out with defense counsel.” The second issue is discovery. And the final one is scheduling.

On the protective order, she argues, “especially in light of the defendant's public comments, that a protective order is vital to insure the sanctity of the proceedings as well as the sanctity of the discovery materials.” She says the prosecution has had “a number of very productive conversations” with defense counsel on the subject and that she believes “we are very close to agreement and finalizing the language.” When “we do reach an agreement, we should be able to submit that language to the Court within the next few days, hopefully.”

The proposed order, she notes “would have terms that would be binding not solely on defense counsel, but also on the defendant himself, and that should the defendant fail to abide by these terms, it could have the effect of being in contempt of court.” She says she wants to highlight three terms on which the defense and the prosecution have already agreed:

  • Trump “may not use any of the materials the prosecution produces for any purpose other than to prepare a defense.”
  • Trump “will be permitted to review certain sensitive materials only in his attorney's office, and he may not take copies of the documents” or notes on them away from his lawyers’ offices.
  • Trump “may not provide the materials he receives through the discovery process to any third party, including the press, and he may not post them to social media.” She describes this third provision as perhaps the most important one.

She emphasizes that violations of these provisions would put Trump in contempt of court.

McCaw says that once the protective order is in place, the prosecution will begin “rolling productions of discovery.” This will take place in three phases.

  • The first stage will involve grand jury minutes and exhibits, witness statements and the like. This will take about a week after a protective order is in place.
  • The second stage “will consist of subpoena compliance, other witness materials, as well as some police documents and other odds and ends.” She says this will take place within the statutorily allocated 65 days.
  • The third stage will include materials like district attorney’s office email messages. She doesn’t know how long this will take.

She says the most important materials will be produced in the first and second stages, particularly the first.

Judge Merchan: to Blanche  he would get 45 days to file its motions. But the judge knows this is a “much more complex case,” and in recent complex cases, he has extended the motion schedule. He asks Blanche what he’s thinking. Blanche responds that “we strongly believe there will be substantive motions addressing the substantive facts of the indictment that could be dispositive.” These motions may happen only after discovery, because they may depend on material received from the government. But “to move the case along expeditiously,” he says, “there may be other motions that do not need to wait for the substantive motions several months from now after the conclusion of discovery.” For example, while the defense just got the statement of facts today, it may seek a bill of particulars. “That might also be something we need before we start going through all the discovery.”

Judge Merchan tells Conroy that he would “welcome” a written motion on it should the district attorney decide to file one. “In the meantime,” Merchan continues, “I do believe I have an obligation to address both Mr. Tacopina and Mr. Trump with regard to this.” He then instructs Trump of his absolute right to “conflict-free” representation. While he stresses that he is “not making any findings of fact” at this point, he informs Trump that prosecutors have alleged that Tacopina has a potential conflict because he “may have represented a former client” who is a witness in the case. “Do you understand that right, Mr. Trump?”

The 45th President of the United States responds with a single word: “Yes.”

Judge Merchan next announces that the state has asked him to give Trump what are called “Parker warnings”—a set of judicial admonitions provided to criminal defendants in New York state court. "This is something I do with every individual who appears before me in the courtroom," Judge Merchan says.

He then proceeds to inform Trump that he has a right to be present at “every stage” of the proceedings in his case. However, the judge warns Trump that there are ways he could lose or waive his rights to be present at the proceedings. Trump could, for example, “voluntarily absent” himself from the proceedings. If he does so, Merchan says that the Court has the right to find that he voluntarily waived his right to be present, which could mean that the proceedings would continue in his absence. Another way Trump could waive his rights to be present for the proceedings is to become disruptive to such a degree that it affects the judge’s ability to preside over the case. In that situation, Merchan warns, he would have the authority to remove Trump from the courtroom and continue the proceedings without him.

“Do you understand that?” Judge Merchan asks Trump.

Trump: He answers: “I do.”

Judge Merchan "Now I think we need to set an adjournment date.” Trump, he continues, will be released “on his own recognizance”—that is, without bail.

The next hearing date will be set for Dec. 4, 2023, for the Court’s decisions on various pre-trial motions. “If, for some reason, I'm unable to have my decisions ready or not all the decisions ready, I will certainly let you know,” he tells counsel.

Blanche “Judge,” he says, “I am just stating the obvious that having President Trump in this courtroom today is extraordinarily burdensome and expensive on the city,” he states. Adding that the “security issues” that needed to be worked out ahead of Trump’s appearance today were substantial, he informs the judge that defense counsel may ask that Trump’s presence be waived for future hearing dates.

“What would be the reason [for] asking to waive his appearance?” Judge Merchan queries. In reply, Blanche again emphasizes “the incredible expense and effort and security issues that present themselves with the President traveling and being in court.”

Judge Merchan Trump’s appearance has been a “huge undertaking” for the court, he reminds Blanche that Dec. 4 is “quite a ways out.” If a reason were to come up that Trump could not appear on that date, such as something unanticipated, he says that defense counsel can run it by him then. “But in the same way I expect all other defendants to appear in court, even high profile defendants…I think in the interest of transparency and assuring the rules of law even-handedly, at this time I'm going to deny your application.”

Blanche thanking the judge, he stresses that he “was not suggesting President Trump does not want to be here.” Instead, he says, the cost of the arraignment to the city is why he brought the matter up today. “To the extent we need to, we will revisit it,” he finishes.

“What you said is true, and I agree,” Judge Merchan responds.

Judge Merchan to he courtroom at large: “Thank you all very much.”

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