Trump push for incremental delays risks upending federal trials

Former President Trump’s first few months in federal court as a defendant have shown that he is employing the same strategy he typically brings to his civil cases: seeking delay. 

Trump made headlines with one motion suggesting his May trial in the Mar-a-Lago documents case should be bumped until mid-November 2024 — after the election. 

It was a fallback from an earlier position that a Florida judge shouldn’t even set a trial date. And in his election interference case, also brought by special counsel Jack Smith, Trump’s attorneys initially suggested the trial should be in 2026.   

But the effort to punt his trials far into the future have overshadowed motions seeking more limited delays that, if successful, could collectively bump the trials beyond election season. 

“This is sort of an incremental strategy; you don’t expect to win all at once,” Ankush Khardori, a former federal prosecutor, said of the smaller motions Trump’s team has filed in recent weeks.

“Over time, the aggregate effect can be to push things out.”

Some of Trump’s latest motions have been on more technical matters arising before trial. In both the Mar-a-Lago case and his election interference case, he has sought delays under a law that deals with how classified information is shared at trial. 

The Classified Information Procedures Act (CIPA) lays out a number of junctions for each side to jockey over classified evidence, sorting out how it will be handled and presented at trial. 

“There are a couple limited aspects of their motions that have some merit, mainly in the Florida case, where they wanted to have full access to the charged documents before having to go into the court and explain their defense theories,” said Brian Greer, a former CIA attorney. 

“Otherwise, their arguments are largely meritless, and they are trying to turn the CIPA process on its head.”

Trump’s team has asked to push back deadlines, arguing the government is trying “to foist rushed CIPA litigation on the Court, President Trump, and his co-defendants.” It has asked to push back CIPA deadlines as well as bump the entire case until after the election.

There have been some delays in sharing certain documents with the Trump team, in part due to the highly classified nature of the secrets they contain.

And the government notes that some issues have been beyond its control, including how personnel assigned to the court to manage the documents have arranged the process for doing so, something expected to be resolved imminently. 

But prosecutors argue those are hiccups in the case that at best justify bumping back the deadline by a week.

The current quibbling is over Section 4 of CIPA, which allows the government to seek the court’s permission to redact or summarize some of the classified evidence as a protective measure before sharing it. The defense team, in turn, is also allowed to make their case for what evidence they believe they need to access in order to argue their case.

Trump’s team has access to much of the classified information in the case, with the battle over a subset of the documents at issue.

They are asking for a three-month delay to what Greer called the first substantive stage of CIPA.

“That’s the first step, and Trump’s team is saying, ‘We don’t want that to be the first step. We want that to be a much, much later step.’ But it’s a chicken and egg problem, right? Until the court blesses those summaries and redactions, [the Department of Justice] doesn’t want to provide the documents,” Greer said.

“The whole purpose of CIPA is to accelerate all the motions practice relating to classified discovery earlier in the case so that parties have an orderly process for narrowing classified information at issue and giving the parties certainty in advance of trial. And they’re basically trying to say, ‘No, we should wait until discovery is over and then start CIPA.’ And that’s just not how it works,” Greer said.

The Justice Department has said the nature of the documents means that if they cannot shield them in some form, “the Government cannot produce the documents at all,” and they cast Trump’s CIPA delay as “a motion that threatens to upend the entire schedule established by the court and that amounts to a motion to continue the May 20, 2024 trial date.”

Trump’s team similarly sought a delay over the small set of classified documents at issue in the Jan. 6 case, with the judge there agreeing to only a modest deadline bump.

Trump’s team has also filed other motions that, while not directly relating to schedule changes, could succeed in pushing back the case. 

In D.C., he filed a motion earlier this month pushing to dismiss all charges in the election interference case, arguing he is immune from prosecution as all actions he took to block the transfer of power ahead of the deadly rampage at the Capitol fall under the umbrella of his official duties.

Khardori dismissed the underlying argument of the motion but said it’s possible the matter could reach the Supreme Court.

Meanwhile, prosecutors in that case also recently asked the judge to force Trump’s team to formally assert in court — as they have on the airwaves — that he will use an advice of counsel defense.

Prosecutors said they were asking the judge to force the assertion from Trump, as waiting until the last minute “risks causing substantial disruption and delay, particularly in this case given the number of attorneys involved,” they wrote.

Such a defense requires Trump to waive attorney-client privilege and release his communications with his attorneys, with prosecutors noting 25 witnesses held back information they believe would be covered.

“The government is also doing what it can to try to front-load some of the processes that might otherwise provide delays on the back end,” Khardori said.

He said Trump’s incremental approach could hold the most promise in Florida, where the case is currently scheduled for May and delays risk getting into tricky territory.

“Once you start to get into August, you’re talking about convention season. Once you start to get into September, you’re then right around 60, 90 days right before the election when the Justice Department is trying not to have an overt influence on the election,” Khardori said.

“At that point, I think judges are going to be thinking about pushing them out until after the election.”

Doing so would achieve exactly what Trump has aimed for, as he and his attorneys have complained about how the case could impact the election season — both in terms of his campaign schedule as well as influencing the results.

“From the beginning, they have been tactically, I think, as clear as they can be — the lawyers — in saying that they do not want these trials to happen before the election,” Khardori said.

“And we know the reason why that is: because if Trump can get back into office, these cases are going to be put on ice one way or another by him or his attorney general.”