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Before Donald Trump was charged in Manhattan state court earlier this year — his first of four criminal cases — people who wanted him prosecuted were wondering what was taking so long. Now, Trump’s lawyers argue the alleged delay violated his rights.
“The delay has prejudiced President Trump, interfered with his ongoing presidential campaign, and violated his due process rights,” the former president's lawyers wrote in a recent motion, which raised several issues seeking to kill the case ahead of trial. Trump was charged "more than six years after public reporting regarding the facts at issue, and almost five years after commencing a grand jury investigation and accessing substantially all of the relevant evidence," they wrote.
If you’re wondering as a general matter, defendants can certainly raise preindictment delay claims. Prosecutors need to do more than simply satisfy the statute of limitations (which Trump’s lawyers separately argue in their motion wasn’t done properly here, either). New York courts have recognized the right to prompt prosecution. Obviously, no one ever wants to be charged, but prosecutors can't just sit on evidence without good reason.
For example, in an appeal decided earlier this year, the state’s highest court said due process was violated when prosecutors took over four years to bring charges. In that case, People v. Regan, a woman reported having been raped by someone she knew well and identified, and that day she submitted to an examination that included DNA samples. The police also that day questioned the eventual defendant in the case, who denied it and refused to provide a sample, which law enforcement only obtained years later. It was a match and he was then charged and convicted, but it was overturned for the due process reason that Trump now raises.
The former president’s hush money case is, of course, different from that one in multiple respects, and courts undertake a case-specific analysis. That analysis includes the extent of the delay, the reason for the delay, the nature of the charge, whether there’s been an extended period of pretrial incarceration, and whether the defense has been impaired by the delay.
To overcome Trump’s claim, Manhattan District Attorney Alvin Bragg may need to explain, among other things, why the charges were brought when they were, relative to when the DA’s office learned of the facts it used to bring those charges. Recall, before Trump was indicted in March, former special prosecutor Mark Pomerantz published a book that was critical of the failure to charge him to that point. Pomerantz was hired under the previous Manhattan DA, Cyrus Vance, who didn’t charge Trump during his tenure. When Bragg took office last year, Pomerantz quit when the new DA wasn't ready to charge Trump, either. (Pomerantz's book is cited throughout Trump's motion to dismiss.)
Trump was charged with 34 counts of falsifying business records, in connection with his reimbursement to his former fixer Michael Cohen, who paid porn actress Stormy Daniels in the run-up to the 2016 election to stay quiet about an alleged affair she had with Trump a decade earlier. Trump has denied the sexual encounter and he also pleaded not guilty to the criminal charges, which have been scheduled for trial in late March, though his federal election interference trial in Washington, D.C., is slated to begin earlier that month, so it's possible the hush money trial could be pushed. Trump is also trying to push back his classified documents trial in Florida that was set for May. He doesn’t have a date yet in the Georgia election case.
Bragg’s office can respond to the delay claim and others raised by Trump's motion in writing and, possibly, at a hearing, if the judge, Juan Merchan, orders one. After all of the scrutiny Bragg was under before he eventually brought the case, he might not look forward to potentially having to justify any delay in open court. But depending on what Merchan demands ahead of his ruling on the motion, the prosecutor might not have a choice.
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