Trump's trial-delay strategy might succeed

Criminal defense attorneys sometimes say that “any fool can reach the merits.” Avoiding the merits of his case is precisely Trump’s strategy in the separate federal election interference and classified documents criminal cases.

If his attorneys manage to delay the trials until after the November 2024 election and Trump wins, he will simply be able to order his Department of Justice to dismiss the charges. 

The delay strategy is showing sign of success because both cases are bogged down in procedural wrangling. Meanwhile, polling shows Trump far ahead in the race for the Republican nomination and ahead of Biden for the presidency.  

The delay strategy got rolling in the election interference case with a defense motion to dismiss the indictment. The motion contended that Trump has immunity from criminal prosecution because the charges, which arise from Trump’s efforts to stay in office despite losing the election, purportedly concern his official duties as president. Judge Tanya Chutkan denied the motion, writing that the presidency does not confer a lifelong “'get-out-of-jail-free' pass.”

Trump’s attorneys filed a notice of appeal of Chutkan’s ruling. Special Counsel Jack Smith countered with a request to the Supreme Court for expedited review of the ruling by Chutkan, who then stayed the pretrial proceedings, pending the outcome of the appeals. Just two-and-a-half months away, the March 4 trial date is uncertain.

The delay strategy is also finding traction in the classified documents case against Trump before Judge Aileen Cannon in Florida, which is scheduled for trial on May 20. Documents, photographs, and witness testimony show that Trump left office with classified documents containing the nation’s most sensitive military and nuclear secrets, scattered them in locations at Mar-a-Lago accessible to visitors, and obstructed the government’s efforts to get them back. As former Attorney General William Barr observed of the classified documents indictment, if even “half of it is true, then he’s toast.”

But the trial date is at risk due to the cumbersome procedures of the Classified Information Procedures Act, which requires Judge Cannon to balance Trump’s right to introduce evidence against the government’s need to avoid public disclosure of highly sensitive information.  The balancing act involves time-consuming pre-trial hearings and appeals and already, by one calculation, that process is four months behind the timeline for starting the trial on May 20.

Putting the U.S. v. Trump trials off for several months could mean that, in the middle of a presidential election, a major party’s nominee will go on trial for serious crimes, a first in American history. But, as Jack Smith argued to the Supreme Court in his request for expedited review, “nothing could be more vital to our democracy” than holding a former president accountable for breaking the law.

Trump already is doing his best to turn the trials into partisan events. Cannon, a Trump appointee, has issued pre-indictment rulings in his favor (she was reversed on appeal), which elicited lavish Trump praise. In contrast, Trump attacked Judge Chutkan, an Obama appointee, on social media as “VERY BIASED & UNFAIR.”  She no longer rides her bicycle to the federal courthouse but instead jogs in the company of U.S. Marshals by varying routes. 

If the trials don’t get started well before the Republican nominating convention in July, and Trump is the nominee, both judges could ultimately postpone their trials until after the election. They may be especially concerned about finding unbiased jurors, and keeping them unbiased and safe, if Trump’s trials are held in the middle of a divisive, even circus-like, presidential election, which will only amplify his inevitable, ugly attacks. 

Jack Smith is working hard to keep the current trial dates, but with one of his cases on hold and the other behind schedule, time may be running out. 

Gregory J. Wallance was a federal prosecutor in the Carter and Reagan administrations and a member of the ABSCAM prosecution team, which convicted a U.S. senator and six representatives of bribery. His latest book is Into Siberia: George Kennan’s Epic Journey Through the Brutal, Frozen Heart of Russia.