It's Game ON in the battle between Alvin Bragg and Donald Trump. One might call it a "donnybrook," but maybe the word will be replaced by "DonnnyBragg."
It appears early on arraignment day that Bragg has taken an early lead. First, he had Trump thinking the indictment was coming weeks ago. This allowed Bragg to see Trump's arraignment playbook. After the big day passed, Bragg lulled the Trump legal team into complacency, thinking there would be no indictment until the Grand Jury met in a month. When the indictment came immediately instead, it was leaked to the New York Times, it seemed, before Trump's team was notified. The WSJ was quite a bit behind the NYT on running the story.
The indictment was sealed, which means the Trump team has to prepare for more contingencies at the arraignment. This didn't have to happen. Bragg is pulling out all the stops. This is war.
There have been leaks about there being over thirty counts. There is some talk about there being some non-felony counts. Despite a defendant's right to a fait trial, prosecutors routinely try to constructively eliminate it. They do this by charging every act in a possible crime sequence as a separate crime, with each count carrying a potential multi-year sentence. Faced with the risk of a 20-50 year sentence, what defendant really wants to go to trial when offered a much more moderate plea deal? This technique makes it much easier for prosecutors to pad their conviction rate. If some of the counts are misdemeanors, that's another prosecutorial trick. If the jury doesn't like the defendant, but doesn't believe a felony conviction is warranted, they have a way out--convict on a misdemeanor, thereby justifying the entire prosecution.
Bragg gets a break from another plea deal. A few years ago, key witness Michael Cohen pleaded guilty to 8 charges in federal court. Among them was a count alleging a campaign finance violation in the Stormy Daniels incident. From a defendant's standpoint, once the sentence has been established, there is little reason to object to the number of charges included in the plea. So prosecutors get defendants to make admissions they seek to make in other questions. Since the Trump campaign was never prosecuted for this, the Cohen "admission" will now be used by Bragg. Surely Trump will try to suppress it, as there was never any "proof" other than Cohen's plea. At the time, I saw the potential for this plea to be used against Trump.
There will certainly be issues over whether Trump can get a fair trial in a jurisdiction when a key plank of Bragg's campaign was prosecuting Trump. So Bragg may go for a gag order to protect Trump's right to a free trial. There is a presumption that prior restraints on speech violate the first amendment, so the Supreme Court has established criteria that must be met in order for them to be enforceable. A broad gag order might be harmful to Trump's campaign, as a key element of his candidacy is the weaponization of the justice system by his opposition. There are good arguments on the Trump side that there will be so much media coverage regardless that a gag order would be ineffective at preserving a fair trial. The very question of fairness could be used as an argument for Trump to argue that the only way to get an unbiased jury wold be a change of venue. There is a good discussion of the legality of gag orders here.
Commentators have noted that key witnesses may have low credibility, but that's for a jury to decide, and a biased jury can make a biased decision. So Trump has real risk here.
