Trump's
run-out-the-clock legal strategy worked
Every
case other than New York is stalled out. Mission accomplished.
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.