Former President Trump’s hush money prosecution faces a critical moment Thursday as a judge mulls whether the case will move forward and if Trump’s first criminal trial will take place next month.
Trump is expected to attend the hearing in New York alongside his lawyers, who will argue the indictment must be tossed because the charges are defective and the former president was selectively prosecuted.
The hearing marks a significant milestone for Manhattan District Attorney Alvin Bragg’s (D) case, the first indictment of a former president, which charges Trump with 34 felony counts of falsifying business records. Trump pleaded not guilty.
Prosecutors accuse Trump of improperly recording reimbursements to his then-fixer, Michael Cohen, who had paid off women including adult film star Stormy Daniels to keep quiet about affairs they allegedly had with the real estate mogul. Trump denies the affairs.
With the trial now potentially becoming Trump’s first of his criminal cases, here’s what to know ahead of Thursday’s hearing:
Trump to show up in court
Trump is expected to continue his recent streak of showing up to his court appearances even amid a stretch of early presidential nominating contests. Despite his busy court calendar, he’s pulled out decisive wins in Iowa, New Hampshire and Nevada.
It’s Trump’s second day in court this week after he attended a closed-door hearing in his classified documents criminal case Monday.
The former president has effectively transformed his court appearances into campaign stops, often making outbursts in the courtroom that have sucked up the oxygen as he stares down various criminal charges and civil lawsuits.
No audio or video will be recorded of Thursday’s hearing, but the court will still allow photographers to go inside the courtroom for a few minutes just before the proceeding kicks off.
And Trump does still have an opportunity to fight in the court of public opinion while inside. Media outlets will set up video cameras in the hallway outside the courtroom, as they did for Trump’s recent civil fraud trial where he often made impromptu remarks.
But in that trial, Trump and his counsel were under a gag order that restricted them from publicly talking about court staff.
"There is none in this case. So it'd be interesting, particularly if the night before he starts posting things — will the prosecutor point to recent posts?” said Catherine Christian, a former Manhattan special assistant district attorney who is now in private practice.
“He's been quiet about this case, because it's been under the radar,” she added. “But now that he is going to show up on Thursday, what is he going to say publicly?”
Trump attempts to dismiss case
If Trump gets his way, his indictment will be no more after Thursday’s hearing.
The former president is urging Judge Juan Merchan on multiple grounds to toss the case without a trial.
He could make a final ruling on those arguments Thursday or also schedule additional pretrial hearings that Trump’s lawyers also believe would lead to the case’s dismissal.
Some of Trump’s arguments are typical for a criminal defendant in New York, legal experts said, although lawyers have expended more effort on this case than many ordinary ones.
“The briefs that were submitted by both sides, both the prosecutor and Trump's attorneys, in this motion to dismiss are really impressive. I thought that they were really fantastic, really good work-product,” said Anna Cominsky, director of New York Law School’s Criminal Defense Clinic.
Among other arguments, Trump asserts that prosecutors waited too long to bring the case and that the grand jury process that culminated in the historic indictment had technical defects.
“You always, unless you're incompetent, file a motion to dismiss with the grand jury minutes, because you're saying the presentation by the prosecutors did not present sufficient evidence for the charges,” said Christian.
“That's like a standard. You do that on every case.”
But some of Trump’s other contentions, including that he was impermissibly targeted for prosecution for political reasons, are unique to the extraordinary circumstances of the former president’s case.
“Because of the unprecedented nature of the charges, and the evidence that they resulted from political pressure rather than an unbiased assessment of the evidence in furtherance of a commitment to do justice, the charges against President Trump must be dismissed,” Trump’s lawyers wrote in court filings.
Judge could set trial date
If the judge enables the case to move ahead, he is expected to indicate when Trump will go to trial.
Cominsky said some defendants do succeed in getting their cases tossed at the pretrial-motions stage, but “it really depends.”
“The idea is, if it's a factual issue, that's why we have juries, right? The court wants a jury to make that determination,” Cominsky said.
“On the other hand, the law is within the courts, that's their realm,” she continued. “And so to the extent that there's something that's sort of what I would say is more purely in the law realm, then you'll see courts be more willing to dismiss.”
The trial has long been scheduled to begin on March 25, but that date was originally set before Trump was charged in three subsequent criminal cases.
As a result, many legal observers had expected the hush money schedule to slip.
The district attorney signaled a willingness to let Trump’s federal criminal trials to proceed first. And Trump’s judge in his federal election subversion case, who had scheduled her trial for March 4, indicated she was in communication with Merchan about the conflict.
But Trump has successfully delayed that trial by appealing his presidential immunity claims, although the defense has so far been rejected. Legal observers also largely agree Trump’s federal case on classified documents charges is likely to be delayed from its current May start.
So now, Trump’s hush money trial could move forward as scheduled after all.
If it does, it would mark the first criminal trial of a former president in U.S. history.