Former President Trump is seeking unprecedented delays as he faces prosecution for mishandling classified documents, arguing his status as a candidate and other factors require punting the case indefinitely.
The strategy, if successful, would postpone Trump’s trial into a window that could be more favorable for him. If Trump were reelected, his administration’s Justice Department could withdraw the charges, or another newly elected Republican president could pardon him.
It’s hardly uncommon for a criminal defendant to seek delays in their trial.
But Jeff Robbins, a former federal prosecutor, said the extent to which Trump has done so is unique and just the first of many junctures where Trump’s team could seek extensions.
“It’s normal for criminal defendants, as part of their defense strategy, to seek delay of cases. The delay that this criminal defendant seeks, however, is off the charts unprecedented,” he said.
Robbins was incredulous in spelling out Trump’s arguments.
“Really?” he asked.
“You’re seeking an extra — what — year and a half on the grounds that if the trial is held before the election, you can’t get a fair trial?” he added. “Or B) In a case which actually is not particularly complicated at all, it’s so complicated that your lawyers need millennia and change before they can adequately prepare for trial.
“Or C) ‘I’m going to be so busy dealing with these other issues that I don’t have time for your little trial, judge,’” he concluded.
Robbins said the arguments “would be laughed out of court in 99 out of 100 courtrooms.”
Trump’s motion for a continuance of the trial, filed Monday, awaits a decision by Judge Aileen Cannon, an appointee of the former president who presided over his initial challenge to the FBI search of his Florida home.
Trump’s team offered numerous reasons for the delay, ranging from his need to campaign to the struggle for attorneys to go through evidence in the case — though the bulk of the case will rest on 31 classified documents and not the thousands of pages of government records Trump took with him.
“The court now presides over a prosecution advanced by the administration of a sitting president against his chief political rival, himself a leading candidate for the presidency of the United States,” Trump’s attorneys wrote in the filing, arguing the case “presents a serious challenge to both the fact and perception of our American democracy.”
The Justice Department roundly rejected those arguments, noting many criminal defendants with demanding schedules must comply with court proceedings, and some members of the legal team waited until the last minute to apply for provisional security clearances needed to review the classified evidence.
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“There is no basis in law or fact for proceeding in such an indeterminate and open-ended fashion, and the defendants provide none,” the Justice Department wrote in the Thursday brief.
One former Trump campaign adviser speculated the former president’s launch of his 2024 bid in November 2022 was a move designed in part to insulate himself from his legal problems, and the push for delays was further evidence of how Trump is hoping to use the political calendar to shield himself from legal scrutiny.
Trump himself has denied his presidential campaign played into concerns about looming indictments.
Beyond this first battle, the case will present numerous opportunities for Trump’s team to challenge different decision points, with each potentially setting back the ultimate trial date.
Cannon set an initial trial date in August — a time frame that complies with the right to a trial within 70 days of being arraigned that largely served as a placeholder. The Justice Department suggested holding the trial in December.
A December date would represent a relatively expedited schedule, but initial dates are often delayed in the lead up to the trial as parties make new motions. DOJ argued any rescheduling should be done as issues arise, rather than well in advance of considering any other specific motion from Trump’s team.
DOJ, however, has little ability to challenge the timelines Cannon sets in the case.
“Judges have a tremendous amount of discretion in setting trials and scheduling the proceedings leading up to a trial session,” Robbins said.
“That is to say that there’s an inherent difficulty in overturning a decision reached by this judge on scheduling which impedes the prosecution and helps Trump. … This is exactly the kind of area where appellate courts don’t really provide a huge guardrail for a federal judge.”
There also aren’t any laws outlining how trials should be scheduled in regard to major elections.
The DOJ has its own internal policy, however, advising against taking any actions that could influence the perception of a candidate within 60 days of an election. Significant delays into the end of 2024 could even push the Justice Department to request a delay until after the election.
In addition to the Mar-a-Lago charges, the Justice Department is also probing Trump’s effort to stay in office after losing the 2020 election that culminated in the Jan. 6 attack on the Capitol.
“Trump tries for a delay strategy even when he’s faced with less existential threats than the two cases that have been brought and the two that are looming,” said Norm Eisen, a former Obama White House ethics lawyer who served as counsel in Trump’s first impeachment.
“He is undoubtedly going to try to do the same here,” Eisen said, referencing potential charges over Trump’s conduct around the 2020 election.
The delays sought by Trump’s team have renewed questions over whether a reelected Trump would try to pardon himself of the charges.
The end of Trump’s first term in office was already marked by questions over whether he would try to preemptively pardon himself or any family members, particularly in the wake of the riots at the Capitol.
“Madison wrote in the Federalist papers that the essential principle of our judicial system is that no man shall be a judge and his own cause by which he meant case, nobody should be a judge In his or her own case. So that would obviously defeat that basic principle of justice,” said Rep. Jamie Raskin (D-Md.), who is a constitutional law expert.
“You’re going to have an argument on the one side that it’s stated in a categorical and unlimited way. There would be an argument on the other side, that it is an absolute affront to the basic concept of the rule of law. But as with everything else, Donald Trump puts our most basic maxims and principles to the test.”
That constitutional question wouldn’t necessarily arise if the Justice Department, whether directed by Trump or on its own, could withdraw the charges.
There are also charges and convictions that lie beyond the grasp of any president — state-level charges that cannot be pardoned.
Trump is facing such charges in New York and could face prosecution in Georgia, where the district attorney for Fulton County is mulling charges related to Trump’s efforts to overturn the election there.
And while the Florida case represented the first federal charges against Trump, they may not be the last.
Legal experts have also noted the DOJ could explore other venues for bringing additional charges relating to the Mar-a-Lago case, like New Jersey, given Trump’s residence in Bedminster, or in Washington, D.C. Any charges related to the Jan. 6 probe would also likely be brought in Washington.
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Those cases would appear before judges other than Cannon, who is based in the Southern District of Florida.
“In the special counsel’s back pocket is the possibility to say, ‘OK, you have granted them this absurd request in the Southern District of Florida. We’re going to indict in one or both of these locations.’” Robbins said.
“And he is not going to get the special ‘don’t schedule a trial until you know, the Age of Aquarius’ treatment.”