Why Donald Trump Is Trying to Delay His Trial

Welcome to the collision of politics and the law.

By and
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Former President Donald Trump. (Photo by Drew Angerer/Getty Images)

Tracking Donald Trump’s legal situation often feels like drinking from a firehose, and on Tuesday the former president turned the spigot on. He announced that he had received a letter from the Department of Justice informing him he is the target of an investigation. That suggests the presidential candidate may be indicted in short order, possibly on charges related to the events of January 6, 2021. The legal and political worlds are colliding once again. 

Next to nothing is certain about what the Department of Justice and special counsel Jack Smith have in store for Trump. At least for now. And that’s good, because there are plenty of developments to consider about Trump’s first federal indictment—and the politics therein.

First, a quick review of recent events related to the first federal indictment against Trump, which was over his the retention of classified documents at Mar-a-Lago: 

After the indictment was filed last month, Judge Aileen Cannon of the Southern District of Florida set August 14 as the initial trial date. That was far too soon to be plausible. A few weeks later, the Department of Justice, which wants to move quickly, suggested a December trial date. Even a December start for this type of criminal indictment would be considered something close to light speed. In response, Trump’s legal team filed a motion last week to delay the start of the former president’s trial indefinitely (but definitely after the 2024 election). 

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  1. Avatar photo
    Gwarcuri

    Come the revolution, first thing we do is hang all the lawyers. Hey, I'm as big a supporter as anyone of due process. But when the process gets this convoluted, justice seems like a remote aspiration. And, the average American just shrugs and sighs. This entire circus is part of what is driving the citizenry into what David Satter calls "deep indifference". ( He uses that expression to describe the depoliticization of the Russian people in the face of a criminal oligarchy. The parallels are frightening. )

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    Retired Prosecutor

    I don’t want Trump’s trial(s) delayed past November 2024 and I think the Mar-a-Lago prosecution (unlike Bragg’s confection) is a solid case. But as the indictments keep rolling in I don’t see how his legal team can credibly prepare defenses in these matters before the election as an issue of due process.

    And based on my experience - and the panoply of pretrial motions available to the defense, I’d be shocked if this trial started next May as currently ordered by Judge Cannon. All that being said, I entertain the hope that it will.

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    Donald E. L. Johnson, Florida

    I don't know who has been polled, but I think maybe 20% of real Republicans think the rioters were "were tourists."
    Real Republicans agree with independents and many Democrats that Trump staged an attempted coup on Jan. 6 and that he and some of his staff and supporters should be indicted and tried for alleged crimes.
    Pollsters need to redefine "Republicans," because the current polls confuse members of the Trump Party with Real Republicans.

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      Gwarcuri

      I especially liked your last sentence. So true.

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      TheMatMan

      Using this definition, either a good number of "Real Republicans" are telling pollsters they will vote for someone who attempted a coup, or there's not enough Real Republicans to matter outside being a spoiler for Trump in the general.

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        Donald E. L. Johnson, Florida

        At this point, the polls aren't hinting at how many real Republicans will vote in the primaries. The Trump party may have to suffer several more wipe out elections before real Republicans regain control of their party. By then, we'll be Chicago.

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    Ben Connelly

    Good analysis. Very helpful.

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  5. Nejcik

    OK, I realize this is not a particularly substantive comment, but: are there any other Polish speakers out there who are having a puerile giggle at the name of that law?

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  6. Avatar photo
    Bill Dyer (aka Beldar)

    This NPR report on the trial setting order is commendably thorough and well-resourced. I spotted no inaccuracies. Key paragraphs, quoting Stephen Saltzburg, a George Washington University law school professor and former Justice Department official:

    ===begin quote===
    Saltzburg said his feelings on Cannon [based on her earlier special master appointment in Trump's civil case, which the Eleventh Circuit dismissed for lack of jurisdiction] changed when on Friday she pushed the start date of the classified documents trial until May 2024 and issued a detailed schedule of hearings for both sides to adhere to.

    "This is just what I would expect from a judge who had experience in classified information cases," he said. "It is impressive and shows considerable thought. If Judge Cannon sticks by the schedule, she will have demonstrated an ability to control a complicated case."
    ===end quote===
    link:
    https://www.npr.org/2023/07/21/1188280400/things-to-know-donald-trump-classified-documents-trial

    A thought to cheer your weekend, friends & neighbors:

    If I want a quick and relieved giggle after contemplating this trial scheduling order, I simply think to myself how very, very lucky I am:

    I could be in a Twilight Zone episode, or a chapter of Dante's Inferno, in which I've been transmuted against my will into one of Donald Trump's lawyers. And I could therefore be spending this weekend telling Trump, for the 10 thousandth time, if he follows his instincts regarding this prosecution, he'll convict himself. Trump has the right to remain silent — just not the self-discipline. Thank you, Sweet Lord, that I'm NOT that lawyer, in that particular version of hell, on what's a plenty hot enough weekend along the Gulf Coast in July 2023!

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    1. Avatar photo
      Retired Prosecutor

      In 40 years of criminal prosecution, I saw some really amazing client control issues, that totally confirmed my instincts to be a prosecutor. I once saw a defendant assault his counsel during a recess. There, but for the grace of God . . . .

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      1. Avatar photo
        Bill Dyer (aka Beldar)

        Heh. The lawyer for the People always has a righteous client, yup.

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          Retired Prosecutor

          Yup. And an amorphous client (the People) doesn’t attack you. As my first Chief Trial Deputy said: “Being a prosecutor is almost the best job in the world… except that you are necessarily part of a government bureaucracy.”

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  7. Avatar photo
    Bill Dyer (aka Beldar)

    All y'all will want to read with me, hot off PACER, Judge Aileen Cannon's order of today's date granting Special Counsel Jack Smith's motion for a continuance of the current trial setting for August 14, 2023, beyond the alternative date suggested by Smith (December 11, 2023), to June 20, 2024.

    Link:
    https://www.beldar.org/2023/2023-07-21_Order_Gr_Govt_M_Cont_to_2024-05-20.pdf

    The order also contains a series of preliminary deadlines working back from that trial date — with the next such deadline (for Smith's renewed-after-more-conference motion for protective order on national security information) falling in just under a week from today, on July 27, 2023.

    My first impression is that the competing factors she cites in the order more than amply justify her in both extending the setting beyond the date Smith had requested, but also justify her in setting a trial sooner than Trump would wish. (His wish, of course, is "never," but his lawyers had asked for "at least" until after the election.)

    If Trump is going to complain about this to the Eleventh Circuit via some sort of mandamus or interlocutory appeal proceeding, he'll need to file that within the next few days or be deemed to have "sat on" — and thereby waived — that sort of extraordinary appellate court intervention. On the other hand, if he DOES try to go the Eleventh Circuit now, (1) Judge Cannon is spectacularly unlikely to grant of a stay of all other proceedings pending appeal, and (2) the Eleventh Circuit is spectacularly unlikely to overrule her on that; and (3) unless it's shutting down the preparations in the meantime, there's no reason for the Eleventh Circuit to involve itself until much closer to the new trial setting, which might be continued by Judge Cannon based on new developments anyway. And yes, Trump can be expected to make a series of further continuance motions in the trial court between now and next May, and motions for mistrial, etc. — basically kicking and screaming at every step of the way.

    There are skeptics who will say, no matter what — and who would have said, no matter what! — that regardless of this order, Judge Cannon is still in the tank for Trump. "By then he'll have the GOP nomination locked up!" they'll wail. And that might become true, but isn't a factor in this kind of scheduling decision unless the judge is messing with Lady Justice's blindfold. There's only one reference to the election — a passing and, for now, appropriately dismissive one: "As a final category, Defendants identify various additional factors the Court deems unnecessary to resolution of the Government’s motion at this juncture, most principally the likelihood of insurmountable prejudice in jury selection stemming from publicity about the 2024 Presidential Election."

    Nevertheless, this should have a profoundly clarifying effect upon the GOP presidential primary.

    PS: Yes, the trial remains set for the Fort Pierce Division of the Southern District of Florida, the potential juror venire of which remains highly favorable to Trump as compared to, say, the Miami Division, and certainly as compared to the District of Columbia. Footnote 4 says "Jury selection procedures will be the subject of additional briefing/argument, to be set by separate Order." If I were Jack Smith, I'd be looking at the local rules and jury selection-by-division procedures to consider whether to ask that jurors be summoned from throughout the entire Division.

    Link:
    https://www.beldar.org/2023/SDFL_Divisions_Map.pdf

    [EDIT:] After closer study, I have a some further reactions:

    (1) Nobody has a deadline falling between December 15 and January 4, but both sides have substantive milestones/responses due ON January 4th. Be grateful for the lumps of coal, lawyers, to heat your hovels in south Florida — no ski vacations in Gstaad this Christmas! Bah humbug.

    (2) An important signal I missed, and ought to have quoted after my first pass-through: "As a preliminary matter, the Court rejects Defendants’ request to withhold setting of a schedule now; the Court deems it necessary to manage this proceeding through important stages of discovery, CIPA briefing, motion practice, and trial, and does not see a sufficient basis on this record to postpone entry of a scheduling order." That must be read in conjunction with the itemized 33-step schedule at the conclusion of the order, however. None of these steps are unimportant, although some are bigger deals than others. But they're all dishes that the juggler needs to keep in the air at the same time if this kind of accelerated trial setting is to be brought off. Although this level of detail is not atypical for a complicated criminal trial in federal court, this is an aggressive version, exactly what you'd expect in a district which claims to have a "rocket docket." These are the indicia of a judge who expects to be saying "Frog" and seeing everyone jump at least once a week. (I say that admiringly, as my mixed metaphors perhaps suggest.)

    (3) Suppose she'd given Smith the December 2023 setting he sought. Nobody would have taken that seriously; everyone would have assumed that was too ambitious; the working assumption would necessarily have been that we're going to be back re-arguing another continuance motion several more times, and at least one of those is going to be granted. Now, instead, with a setting this far out and a schedule this detailed with a judge this involved, everyone has to take this setting very seriously — heart-attack seriously. This doesn't mean no more continuances will be granted. But this is the necessary predicate to set up — i.e., make a bullet-proof record for appellate purposes, showing a reasonable exercise of trial court discretion, not an abuse thereof — a future continuance motion denial. What Smith lost in immediacy he more than gains, IMHO, in likelihood of this trial setting actually sticking. And getting to verdict quickly is the whole point, strategically, of filing this limited, rifle-shot prosecution that doesn't attempt to encompass anything related to the 2020 election.

    I expect Smith and his team are entirely unsurprised by, and entirely satisfied with, this order — and they should be.

    [EDIT #2:] I've been thinking further about the jury pool of the Fort Pierce Division. I don't know any details of those counties, and what I do know is second-hand from press sources that are looking at voting patterns in 2016 and 2020. If someone voted for Trump, the common — and indeed, seemingly obvious and overriding — inference to draw is that he or she will be less likely to vote to convict, and more likely to vote instead to acquit, perhaps stubbornly enough to hang a jury (whose verdict on each count must be unanimous, of course).

    I really think that's the wrong perspective. If I'm Jack Smith, I don't care nearly as much about the Biden vs. Trump juror breakdown as I do the "law and order versus bend the rules" jurors. I want jurors who will take very seriously the judge's instructions about basing their deliberations only on the evidence, and banishing their own biases and prejudices to the best of their human ability to do so. I want jurors who can and will FOCUS on whether I've proved every element of each crime — not whether I've proved Trump would be a terrible POTUS if re-elected.

    I don't find it hard to imagine, in a very conservative venue, jurors who were willing BOTH to convict Trump and to vote for him again. That's Joe Biden's problem, not mine — if I were Jack Smith, or Br'er Rabbit.

    How much of this venue is cloud and how much silver lining for the Special Counsel? Better-informed opinions, especially from Floridians, are hereby earnestly solicited.

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      Retired Prosecutor

      Thanks for your valuable insights which I have found illuminating. My trial practice was in the state court. While I had lots of Federal Court exposure, it was section 2254 habeas corpus litigation. My general experience in the state courts was one defense delay of trial dates after another which may warp my perspective.

      But when you mentioned PACER all the ugly memories came flooding back, including 16 brutal appearances in the fabled 9th Circuit.

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        Bill Dyer (aka Beldar)

        What would be your preference if you were on Smith's team? Law-and-order jurors? Or Biden-voting jurors?

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          Retired Prosecutor

          I like folks with a lengthy stake in the community and prefer someone with analytical career skills - engineers, accountants, tradesmen, etc. I guess that would be “law and order” jurors. On the other hand, ministers, social workers, and teachers (poison!) are thanked and excused. My goal is to get someone who is willing to resolve conflicts in the evidence, follow the instructions, and not engage in social policy.

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    Wilhelm

    I was thinking "Law and Disorder" as the name for this continuing series.

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  9. Emma

    I wish law and order (the original) was still on the air.

    Lenny Briscoe would have a smirky one liner; McCoy would put justice above all else (with an epic closing argument!!); the defense would indeed, uncover a surprise witness (and another epic speech!!); and it would all work out in the end with a message that makes us ponder and think.

    And we will be unified in the assurance that regardless of the outcome, our leaders are idiots, and we gave them the power.

    End scene.

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      Rev Snow

      For the original, we'd need Max Greevey and Ben Stone.

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    Marc Frischhertz

    Why did the Judge move the trial to a different county?

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