Wednesday, May 15, 2024

LISA NEEDHAM Trump's run-out-the-clock legal strategy worked

 

Trump's run-out-the-clock legal strategy worked

Every case other than New York is stalled out. Mission accomplished.

 

LISA NEEDHAM

MAY 15, 2024

No matter what happens with Donald Trump’s other criminal cases, we’ll always have New York, where he’s been walloped with two sets of civil penalties and is currently sleeping through his hush-money/election interference criminal trial. 

Unfortunately, despite four indictments, it looks like New York is the only trial that will take place before the 2024 election. With more than a little help from his friends, Trump’s delay tactics have been remarkably successful, and he probably won’t see the inside of another criminal courtroom any time soon.  

Cannon comes through for the guy who appointed her

Last week, Trump appointee Judge Aileen Cannon issued a bizarre order that indefinitely delayed Trump’s trial for his mishandling of classified national security documents. It’s the culmination of months of foot-dragging on Cannon’s part, and it’s one that legal experts agree looks equal parts deliberate and incompetent. 

Cannon’s May 7 order set 14 pretrial deadlines, vacated the May 20, 2024, trial date that had been tentatively set, and just didn’t bother to set a new one. Her reasoning? Setting a trial date would be “imprudent and inconsistent with the Court's duty to fully and fairly consider the various pending pre-trial motions before the Court, critical CIPA [Classified Information Procedures Act] issues, and additional pretrial and trial preparations necessary to present this case to a jury.” 

That sounds plausible until you remember that Cannon herself is solely responsible for delays in addressing pretrial issues. It’s the judicial equivalent of running around in a hot dog costume declaring that “we’re all trying to find the guy who did this.” Her behavior is so obviously favorable to the former president that one Republican close to Trump told Rolling Stone Cannon is his “favorite member of the Trump campaign,” while another Trump adviser called her “a godsend.” 

The adviser isn’t wrong. Cannon has been helping slow-walk the matter for nearly two years, going back to her ludicrous decision to appoint a special master after the FBI searched Mar-a-Lago. The Eleventh Circuit Court of Appeals issued a scathing decision reversing Cannon, but that smackdown hasn’t changed her conduct. 

It isn’t just that Cannon is magicking the trial itself away. She’s also tying up prosecution resources by considering fringe legal theories from the Trump team. In March 2024, she ordered both parties to craft jury instructions regarding the Presidential Records Act (PRA), giving credence to Trump’s assertion that the PRA allowed him to declassify national security documents and thus turn them into personal records that he could keep.

The PRA has no language to this effect, and, as special prosecutor Jack Smith pointed out in his filing to the court, even if the PRA authorized such behavior, Trump has never presented evidence that he declassified the documents. Despite Smith’s request she decide the matter promptly so the prosecution could appeal to the 11th Circuit if necessary, Cannon has made no move to rule.

Cannon’s newest order shows she continues to allow Trump considerable leeway regarding other far-fetched arguments. She scheduled a three-day hearing in mid-June to address Trump’s motion to “define the scope of the prosecution team.” This is Trump’s Alex Jones-style “deep state” argument — that Trump is entitled to additional discovery because Smith purportedly worked with the national security establishment at the behest of the White House to gin up charges against Trump. The hearing is going forward despite prosecutors explaining that there has never been such a hearing in Cannon’s jurisdiction and there’s no law permitting it.

Cannon also pushed back some of her own deadlines, allowing Trump an extra six weeks to file papers regarding what classified material his team plans to use during trial. This was the second time Cannon granted an extension on this, as she had already moved that deadline from November 2023 to May 2024. The domino effect of this newest delay led to Cannon moving the required CIPA hearing out to July 22. 

When dealing with classified documents, a CIPA hearing is required so national security information is not improperly revealed at trial. No trial can occur until after the hearing is held and the judge rules. Cannon has failed to rule on several other pending motions, so there’s no reason to believe she will rule swiftly on CIPA. The Trump team is also requesting four days of hearings on their allegations of prosecutorial misconduct. There’s no ruling from Cannon on this yet, nor is any timeline included in her most recent order.

The inescapable conclusion is that the Mar-a-Lago case is well and truly dead until after the election, when if Trump wins he’ll almost certainly be able to use his power to make it go away.

SCOTUS derails the January 6 case

In addition to Cannon, Trump is getting help from the US Supreme Court, which agreed to hear his absurd immunity claim in the January 6 election interference case — one that Trump’s own lawyer admitted would allow a president to order assassinations of political opponents.

In December 2023, special prosecutor Jack Smith asked the Supreme Court to take the question on an expedited basis but they declined. This meant that the DC Circuit Court of Appeals had to hear the appeal first. 

The DC Circuit ruled against Trump on February 6, 2024, and the Supreme Court agreed to hear the case on February 22. Apparently, the Supreme Court didn’t see the issue as particularly pressing and set oral arguments for April 25. During oral arguments, the Court’s conservative wing signaled they didn’t necessarily buy the entirety of Trump’s immunity argument but, as Liz Dye wrote, they “seemed to think the question of whether the president has to obey the laws of this land is a major head scratcher.” 

The most cynical interpretation of the behavior of the Court’s conservatives is that they are not interested in giving presidents absolute immunity, but instead want to help Trump run out the clock. The right-wing justices will look rational by rejecting the outer limits of the immunity claim, but by dragging out a decision until the end of the term in June, they’ll have helped Trump push this case off until after the election. While the appeal drags on, judge Tanya Chutkan was forced to vacate the original trial date of March 4, 2024, and she will not set a new schedule until the immunity issue is resolved. 

There are still other pre-trial matters to be taken care of, which Just Security estimated could take three months, and the trial is estimated to take 8 to 12 weeks. Even if Chutkan runs the tightest ship imaginable after the case is sent back down and bats away every other ridiculous Trump claim, the timing just doesn’t work out. 

The Georgia case is also paused indefinitely

The calendar also doesn’t favor the prosecution in the Georgia case, where Trump is charged with racketeering, false statements, forgery, witness tampering, and election fraud. However, where the classified documents and January 6 cases have dragged on with the assistance of Trump appointees, the roadblocks in the Georgia case are mainly the fault of the prosecutor, Fani Willis.

Willis hired her boyfriend, Nathan Wade, as a special prosecutor on the case, and when one of Trump’s co-defendants found out, he moved to dismiss the indictment and disqualify Willis. After a hearing in February, the presiding judge ruled the following month that Willis would not be disqualified. But Trump and eight of his co-defendants asked the Georgia Court of Appeals to allow them to appeal the decision, and last week, the appellate court agreed to hear the case. 

No dates for briefing or oral argument have been set. The appellate court has roughly six months to hear and decide the case, which means a decision could come as late as November. Also, the trial court judge will probably refrain from setting a trial date until this is decided.

Unless the Georgia appellate courts move with unusual swiftness, Willis’s misstep here handed Trump the considerable gift of delaying the trial past the election.

The New York case isn’t going well for Trump

Meanwhile, back in New York, Trump’s former fixer, Michael Cohen, spent Monday and Tuesday testifying about his role in buying Stormy Daniels’s silence during the 2016 election.

Cohen’s testimony neatly tied together the testimony of several earlier witnesses. Cohen worked with the National Enquirer’s David Pecker to kill other negative stories about Trump during the 2016 campaign, negotiated with Daniels’s then-attorney, Keith Davidson, over the hush money payment, and set up bank accounts under false pretenses. Cohen also testified about his discussions with Allen Weisselberg, then the chief financial officer for the Trump Organization. Weisselberg signed off on the payments reimbursing Cohen.

Neither side has called Weisselberg to testify, and he is currently incarcerated for five months after pleading guilty to two counts of perjury in Trump’s civil fraud case. Weisselberg also spent 100 days in Rikers in 2023 after pleading guilty to tax fraud in a case against the Trump Organization. Weisselberg may end up taking the stand here, as Trump’s attorneys object to the prosecution’s plan to present a severance agreement showing Weisselberg is set to get an additional $750,000 from the Trump Organization this year. The implication is that Weisselberg has been paid not to testify. Politico reported that when Judge Merchan signaled he might have Weisselberg appear, Trump’s attorneys looked “visibly concerned” and stated there were “procedural problems” with adding him to the witness list. 

In the end, Cohen’s testimony was simultaneously earth-shattering and banal. On the one hand, it’s utterly jarring to listen to the details of a criminal hush-money scheme undertaken by a former president to ensure he won an election while that same former president is running again. On the other hand, most of what Cohen testified to was already known. The biggest revelation on Monday was likely that after Cohen literally committed crimes for Trump in 2016, Trump rewarded him by cutting his bonus by two-thirds. 

Prosecutors said they may conclude their case by the end of this week, at which point we will see what the defense has in store. The biggest question is, of course, whether Trump will testify. Trump initially said he would “absolutely” testify, but has since watered that down to that he would “probably” do it “if necessary.”

It’s difficult to envision Trump holding it together under several days of cross-examination, particularly given that he’s still insisting he did not have sex with Daniels. It’s equally difficult, though, to envision Trump missing an opportunity to grandstand. Regardless, as Trump’s other criminal cases drift off of the calendar, this case is the best chance to see that some small measure of justice is served.