Lawyers for former President Donald J. Trump sought to have his hush-money case moved to federal court, even as the judge in the case scheduled his trial for early next year.
A month after the Manhattan district attorney’s office unveiled criminal charges against Donald J. Trump, the complexities of prosecuting a former president and current contender for the White House are becoming increasingly clear.
On Thursday alone, a flurry of activity at what was supposed to be an ordinary court hearing illustrated that reality.
The state court judge overseeing the case tentatively scheduled the trial for early next year, in the thick of the presidential primary calendar. The judge also acknowledged Mr. Trump’s role as a presidential candidate who has a right to defend himself — but granted a request from prosecutors to restrict Mr. Trump’s public comments about the evidence against him. And the former president’s lawyers announced that they would try to move the case to federal court — arguing that as a former federal officeholder, it was Mr. Trump’s right to be tried there.
The hearing crystallized the delicate balance between treating the former president like any other defendant, and acknowledging the reality that he stands alone, as the first former president to face criminal charges.
At one point, the judge, Juan Merchan, fiercely questioned one of Mr. Trump’s lawyers about whether the former president, “should be held to a different standard than all of the other defendants who come to this courtroom?”
But a moment later, the judge seemed to answer his own question. “Obviously Mr. Trump is different,” he said, noting the defendant’s dual role as former president and presidential candidate. “It would be foolish of me to say he’s not.”
The challenge for JusticeMerchan will be to weigh the unique nature of Mr. Trump’s role against the principle that the district attorney, Alvin L. Bragg, cited last month in a news conference announcing the charges: That everyone stands equal before the law.
John S. Martin Jr., a former federal prosecutor and judge, said that the reality of Mr. Trump’s role as a former president and current candidate could not be ignored. He said that Justice Merchan needed to think about when it might be appropriate to restrict Mr. Trump’s privileges as a political candidate.
Any restrictions placed on Mr. Trump “almost have special significance, because they impact him as they would not impact anyone else,” Mr. Martin said, adding, “You’re impacting his ability to do something he has every right to do, which is run for president.”
In that context, even something as routine as setting a trial date becomes fraught. Justice Merchan on Thursday asked prosecutors and Mr. Trump’s lawyers to decide on a date in February or March of 2024. That means the trial will likely take place in the midst of the primary contests of next year’s presidential election, when Mr. Trump’s courtroom travails would surely become a key feature of media coverage on the campaign trail.
Juan M. Merchan is the first judge to grapple with the complexities of a criminal proceeding involving a former president.Credit…Ahmed Gaber for The New York Times
The charges against Mr. Trump stem from his first presidential campaign, during which his former fixer, Michael D. Cohen, paid $130,000 in hush money to a porn star, Stormy Daniels. After his victory, Mr. Trump reimbursed Mr. Cohen, personally signing nine of the 11 checks used to repay him.
Mr. Trump’s family business, the Trump Organization, then falsely recorded in the company’s records that the payments were made for legal services, prosecutors say.
In March, the former president was indicted on 34 felony counts of falsifying business records. When the charges were made public, prosecutors and defense lawyers said that they were nearing an agreement on certain restrictions that would be placed on Mr. Trump’s access to case material, and his ability to talk about the prosecution’s evidence.
But the parties could not agree. The district attorney’s office asked Justice Merchan to limit Mr. Trump’s access to some case material and to bar hime from spreading the prosecution’s evidence publicly, including on social media. Lawyers for Mr. Trump balked at that request, saying that any restrictions placed on their client should also be placed on Mr. Bragg and his prosecutors.
On Thursday, Justice Merchan sided with prosecutors, saying that the order that he would issue should apply to Mr. Trump, and that there was no reason it should also apply to the district attorney’s office.
Still, he emphasized that Mr. Trump would remain free to speak about the “vast majority of the evidence,” saying his expected order would only apply to evidence that the prosecution had obtained itself.
“I’m trying to do everything I can to be as narrow and focused here as I can possibly be,” the judge said.
A lawyer for Mr. Trump, Todd Blanche, nonetheless announced at the end of the hearing that Mr. Trump would seek to move his criminal case from New York State Supreme Court to federal court
The effort to move the case to federal court is likely to be a long shot and will not have any immediate effect.
Such requests are rarely granted in criminal cases, and a spokeswoman for Mr. Bragg said prosecutors would oppose it.
Alvin L. Bragg, the Manhattan district attorney, unveiled 34 felony charges against Mr. Trump earlier this year. Credit…Jefferson Siegel for The New York Times
Mr. Trump’s effort hinges on a little-utilized provision in federal law that allows for defendants, within 30 days of their arraignment in state court, to submit “a short and plain statement of the grounds” for having their case moved to federal court.
The basis for the request is another provision in the law that allows some former federal officials who are indicted in state court to have their cases switched to federal court. To qualify for that provision, according to legal experts, Mr. Trump must be facing charges for conduct related to his presidency, which is up for debate.
Mr. Trump’s lawyers argue that because he is accused of falsifying records that were created while he was in the White House — Mr. Cohen was reimbursed over the course of many months in 2017 — the case meets that test.
“This case is unprecedented in our nation’s history,” his lawyers wrote in the notice of removal, adding that, “Never before has a local elected prosecutor criminally prosecuted a defendant either for conduct that occurred entirely while the defendant was the sitting president of the United States.”
But several legal experts said on Thursday that just because he is accused of committing a crime while in the White House, does not mean the crime was related to his presidency.
“He’s welcome to try but its unlikely he’ll have any success,” said Joyce Vance, a former U.S. attorney who is now a University of Alabama law professor. She said that the relevant law would “obviously” not come into play given that the conduct wasn’t within the scope of Mr. Trump’s official duties.
Still, Mr. Trump might have little to lose in seeking a fresh start with a federal judge, particularly given his history in Justice Merchan’s courtroom. Last year, the judge presided over the Trump Organization’s unrelated tax fraud trial, in which the company was found guilty by a jury. And Justice Merchan, a former prosecutor, is known to impose tough sentences in white- collar cases.
But on Thursday, the judge assured the courtroom that he was being fair.
“I have to apply the law to him as I see it and in that regard I’m bending over backwards and straining to make sure that he is given every opportunity possible to advance his candidacy and to be able to speak in furtherance of his candidacy,” Justice Merchan said.