Manhattan: Can Trump delay prosecution with pre-trial hijinks?

As we move towards what looks more and more inevitably like the first indictment of the former President in Manhattan (unless Fani Willis’s “imminent” suddenly takes wing or Jack Smith runs strong in the home stretch), there is lots of uncertainty about the details, including the most important one: what, precisely, will Trump be charged with? Let’s set that question aside for today, because the reality is, we’re unlikely to be able to answer it before an indictment, if there is one, becomes public, and we’re able to see the actual charges.

Instead, let’s take a look today at some of the issues that are likely to come to the forefront following any indictment, since Trump is Trump. Trump believes in doing just about anything, including filing borderline frivolous motions and legal actions, and engaging in sharp practices if it will help him delay legal proceedings. There’s no reason to believe he won’t continue that practice in Manhattan and any other jurisdictions he’s indicted in.

Although in the past it’s been mostly in civil cases, Trump got a start with experience on the criminal side of the house in Florida, where he succeeded with some delay of the classified documents case. He did that not by playing by the rules and challenging the search warrant at the appropriate point in time but rather by filing a meritless case in front of Judge Aileen Cannon, which, while ultimately called out by the 11th Circuit Court of Appeals for the mockery that it was, bought him several months of delay. That delay was on top of the tactics he’d previously used to slow down FBI review of the documents while they were in the National Archives’ hands. In other words, any prosecutor would be smart to be prepared for more of these types of tactics.

Can Trump circumvent prosecution with unprecedented, even meritless, legal proceedings designed to keep the prosecution from moving forward?

The short answer is no. Trump can delay but not derail. But Trump clearly believes, because the practice has given him some success over the years, that if you delay long enough, circumstances can change, and they can change in his favor. Deny, deflect, delay—that’s the game he’ll play here.

But the Mar-a-Lago case aside, Trump’s delay strategy has been used in civil matters. He used delay to stretch things out to the point where the best settlement deal possible became available, like he did in 1988, when he paid $750,000 in penalties to settle a suit with the U.S. Federal Trade Commission for violating antitrust laws over 1986. Even putting off settlement payments for years is beneficial—Trump’s $25 million settlement in the Trump University suit only came about after six years of litigation.

Prosecutors work on a different clock—literally, the Speedy Trial Act puts criminal cases on a shorter fuse, and while that can be delayed by pending motions and appeals, the prospects aren’t indefinite, as they can be in civil cases. So what is Trump banking on? Elections happen, prosecutors change. Trump may hope that his political forces can influence prosecutors, as they are trying to do in Georgia with new oversight measures designed to hamstring prosecutors like Willis. Trump may hope prosecutors, both state and federal, can be replaced with ones more willing to act favorably towards him, perhaps remembering how his own Attorney General, Bill Barr, dismissed cases and made more favorable sentencing recommendations for his cronies Michael Flynn and Roger Stone. And if he can find issues to appeal early on, before trial, in what’s called an interlocutory appeal, Trump might hope to get onto a lengthy track as issues move through courts that, even when acting expeditiously—as they’re very likely to do in a case involving the prosecution of not only a former president but a current candidate—take time.

But in New York, unlike in civil practice, where it’s relatively easy to appeal questions involving matters of law before a trial, in criminal matters a defendant faces far more limitation. While prosecutors can appeal rulings from the court, for instance the dismissal of an indictment or suppression of evidence, there are limits to what defendants can appeal, either as a matter of right (an issue they are automatically entitled to appeal) or with the court’s permission. The primary criminal appeals statute in New York, CPL 450.10, permits an appeal as of right after judgment and sentencing—in other words, requiring a defendant to wait until trial is complete—except in very limited settings that aren’t at issue for Trump, like when a request for DNA testing is denied. While Trump can litigate issues, like the claims of privilege and immunity he is almost certain to bring, an efficient trial court can deal with those promptly and speed the litigation on its way. So while there is some legal wrangling to do, once the court resolves those issues, it’s unlikely any additional efforts to delay will bear fruit; in fact, they’re likely to do the opposite and wear down the patience judges typically extend to defendants in criminal cases.

As the case proceeds, we’ll see that courts in New York have different names than what we’re used to in federal court and most states, where the Supreme Court is the highest appellate court. In New York, the trial courts are called the supreme court, with cases advancing to a first level of review in a court called the appellate division. Final decisions are rendered by the New York court of appeals.

As we move beyond the New York case, where expectations for charges center on Trump’s payoff to Stormy Daniels during the closing days of the campaign, there is a key point to keep in mind when he argues that he is immune from prosecution for actions taken in the course of the presidency. Presidents don’t play an official role in determining the outcome of elections, which, as we’ve previously discussed, are run by states and local governments and are not the responsibility of the president.

So, for instance, Trump may assert immunity under the supremacy clause of the Constitution, the doctrine that extends immunity to prosecution from state crimes for federal officers who are charged for conduct committed while carrying out their official duties. Trump, of course, had no official duties stemming from the office of the presidency in New York during his campaign, and certainly none that involve paying off his former mistress to stay quiet. But what of Georgia?

It presents, perhaps, a slightly closer call. We learned earlier this week that there is a recording of Trump asking Georgia House Speaker David Ralston to convene a special session to overturn Biden’s victory and declare Trump the winner in that state. Immunity doesn’t fly here, because Trump had no official duties to perform regarding the outcome of Georgia’s election. Just as he wouldn’t have official immunity if he’d placed a call to a jockey to fix a horse race, he shouldn’t have any with this type of election-related charge. Prosecutors may want to also establish that Trump didn’t believe he’d won the election. But whether Trump believed he’d won or not, he had no official duties in this regard and no immunity from state prosecution. And of course, for any portion of charges related to Stormy Daniels, hush money, and fraudulent accounting for campaign contributions, a claim of supremacy clause immunity is so attenuated as to be frivolous.

While we should always be concerned by, and prosecutors are certain to be alert to, tactics by Trump designed to interfere with a trial, the reality is that even Trump’s Teflon coating has its limits. We saw judges in the 11th Circuit step in when he tried to kneecap the federal investigation into classified documents in Mar-a-Lago. In civil cases, like the defamation case brought by E. Jean Carroll that goes to trial next month, judges have shown that their patience with efforts to abuse the court system is wearing thin.

Last week, Trump got caught trying to play games designed to delay trials—one state and one federal, in front of two different judges—by agreeing to schedules that would end up conflicting, leading to delays down the road when the overlapping schedules became apparent. One case involves investors who allege they were duped by fraudulent product promotion connected to The Apprentice, and the other is the New York Attorney General’s civil case over Trump Organization practices. A lawyer alerted the judges, giving them the opportunity to deal with Trump’s tactics now. That’s important because Trump will almost certainly argue that any trials scheduled during the campaign should be delayed. It’s likely that having been called on trying to play hide the ball, the judges won’t have much patience with Trump’s willingness to engage in sharp practices. Lawyers have an obligation to act with candor before the courts and judges will become increasingly willing to hold Trump lawyers to account, as we’ve seen them do recently, to avoid being taken advantage of by an unprincipled litigant.

What of any Trump claims as we head into the primary season that he’s entitled to delay to avoid interference with the election? There is some historical precedent. In 1988, Pat Robertson, the televangelist, was running for president. Robertson was also suing a current member and a former member of Congress for defamation over his Korean War record. The trial was slated to start the day of the Super Tuesday primaries, and Robertson sought a continuance because of the demands of his campaign. Federal District Judge Joyce Hens Green, a federal judge in the District of Columbia, told him no.

The comparison is imperfect, because Robertson was the plaintiff—he had chosen to file the lawsuit—whereas Trump would be the defendant in the civil and criminal cases he could be fighting off during the primary season. Judge Green ruled Robertson had to bear the consequences of filing the lawsuit amid the presidential campaign. Despite the different situations, the principle is similar. Trump shouldn’t be able to avoid legal consequences because he chose to launch a campaign any more than a plumber could demand repeated delays in criminal or civil cases because he had pipes to fix. Americans have an interest in seeing pending matters, many delayed to this point by Trump’s tactics, precisely because he is reentering the political arena. Judges bend over backwards to ensure litigants receive due process, but Trump will make arguments that are tantamount to demands he be set above the law. And given his repeated demands, the courts are less likely to play along than in earlier moments, especially as more serious criminal matters loom large. Trump shouldn’t be permitted to use a campaign for the presidency as a shield or as a sword. Like everyone else, he has obligations when he is sued or prosecuted. I expect we’ll see the courts enforce them.

I’ll be back from vacation in Sweden over the weekend, and I expect we’ll have a lot to discuss this coming week.

We’re in this together,

Joyce