Why Trump’s Bid to Delay His Trial Until After the Election Could Work
It’s a tactic that has worked for Donald Trump in the past. Facing federal charges that he allegedly hoarded classified documents and obstructed the government’s efforts to retrieve them, the former president resorted to a familiar strategy: try to delay his legal woes into oblivion.
On Monday night, Trump’s attorneys requested an indefinite delay in the Mar-a-Lago boxes case after Special Counsel Jack Smith requested the trial start in December. The matter will now be decided by the Trump-appointed U.S. District Court Judge Aileen Cannon. Her ruling will have implications far beyond this one case. With another trial in New York looming, and other potential indictments against him in the works, the outcome of Trump’s bid to postpone the trial until after the 2024 election could impact the campaign and possibly the fate of multiple prosecutions against the former President.
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If Trump can push the trial until after the election and win back the presidency, he could attempt to pardon himself or have the Department of Justice squash the case against him—a move that would galvanize a fierce backlash and legal challenges from across the political spectrum.
“Delay is what he does. That’s one of his main legal strategies,” Noah Bookbinder, a former Justice Department attorney, tells TIME. “The fact that they’re pushing for an extensive delay is not surprising. This particular way of doing it seems unusual.”
In a 12-page filing, Trump’s lawyers cited several reasons behind the request. One was that they had to respond to a voluminous batch of documents brought forth in discovery, including more than 833,450 pages of material. The other was that Trump had a conflicting scheduling priority. “President Trump is running for president of the United States and is currently the likely Republican Party nominee,” they wrote. “This undertaking requires a tremendous amount of time and energy, and that effort will continue until the election on Nov. 5, 2024.”
Legal experts expect the trial to be delayed to some extent. White-collar criminal cases rarely go to trial quickly, and this one is unprecedented. Trump is not only the first former President to be prosecuted by the government he once led. He’s under indictment while also a leading candidate for the highest office in the land.
“Defense attorneys often try to delay criminal trials,” Renato Mariotti, a former federal prosecutor, tells TIME. “In my experience, federal criminal trials can often be delayed for multiple years.” For that reason, Mariotti suspects the case won’t be resolved before voters head to the polls next year. “I think there’s no way that this case is going to be tried before the election, unless Trump and his people want that to happen.”
But the Monday filing suggests Trump and his lawyers don’t want it to happen. “They’re going about it in a very ham-handed way,” Mariotti adds. “Some of the reasons that they’re offering are not valid, but some of them are. It’s valid to say that having over 800,000 documents to review is significant. Saying that he’s busy running for president may be less valid.”
That’s not the only reason Trump will be busy in the coming months. He’s also facing charges in Manhattan over allegations that he falsified business records to conceal hush-money payments to a porn star. Both cases may be a prelude to even more indictments. A separate special counsel investigation by Smith into Trump’s role in the Jan. 6, 2021 attack on the U.S. Capitol may lead to additional charges. So, too, may Fulton County District Attorney Fani Willis’s probe into Trump’s attempts to overturn the 2020 election result there.
Trump’s allies will argue that the confluence of all these mounting investigations and prosecutions are designed to hamstring the former President’s attempts to reclaim the White House. “Where it hurts in the general is if Trump is distracted,” Mike Davis, founder of the conservative Article III Project and a close Trump ally, tells TIME. “He has to spend his time defending himself in court instead of campaigning. That’s the issue. Defending yourself in court as a full-time job. Defending yourself in two or three courts is a full-time job times two or three. Running for president is a full-time job. The Democrats know this. That’s why they’re bringing this lawfare now.”
The situation puts Judge Cannon in a delicate position. She originally sought to start the trial in August, adhering to standards set forth under the Speedy Trial Act. But judges have discretion to push trial dates back, and they often allow the accused more time if requested to prepare their defense. “Usually, defendants do get delays, but they don’t get indefinite delays,” adds Bookbinder, who now leads the left-leaning nonprofit Citizens for Responsibility and Ethics in Washington. “I think she’s going to be under a lot of pressure to not treat Donald Trump unfairly, but also not to give him preferential treatment.”
Judge Cannon has already been accused by Trump’s critics of playing into his strategy of running out the clock by agreeing last year to his request to appoint a special master in the Mar-a-Lago documents probe. The special master was later struck down by a federal appellate court.
But delaying such a high-profile and high-stakes case for well over a year is another matter. It’s made especially more complicated given the wide-ranging suspicion that Trump ultimately hopes to win back the presidency to clear himself from criminal vulnerability.
While Trump wouldn’t be able to pardon himself in cases brought forth by New York or Georgia, he has floated the idea of exonerating himself from federal charges. Yet one of the nation’s foremost experts on presidential pardons says it’s far from clear that’s even possible.
“The notion that the President can exempt himself by fiat, as a unilateral executive decision, from the federal criminal process was put to rest by the Supreme Court,” Margaret Love, the former U.S. Pardon Attorney under Presidents George H.W. Bush and Bill Clinton, tells TIME. She was referring to the 1974 ruling in United States v. Nixon, in which the court unanimously said the president doesn’t have executive privilege shielding them from subpoenas or prosecution.
The concept, she says, dates back to the nation’s founding. “The framers of our Constitution were certainly aware of this important embedded principle of English law that a king must be subject to the laws of his country,” Love adds. “He was not above the laws, particularly the criminal laws.”