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National Review
National Review
6 Jan 2024
Andrew C. McCarthy

NextImg:Trump’s Trial Strategy: Delay, Delay, Delay

{W} ith the 2024 election now just ten months away, and with Aaron Burr not here to object, I’m going out on a limb to say the election-interference prosecution of Donald Trump, the former president and likely Republican presidential nominee, by the Justice Department of Joe Biden, the incumbent president and Trump’s likely Democratic opponent, is the most politically charged in American history. In that criminal case, both Trump and Biden Justice Department special counsel Jack Smith are being driven by the 2024 election calendar. That is scandalous for one of them.

Prosecutors are never supposed to take politics into account. As the Washington Examiner’s Byron York points out, there are explicit Justice Department guidelines that forbid Smith from trying to influence an election — though, if the mainstream press yawns and the presiding judge fails to ream him out, there is not much that can be done. By contrast, the accused, who is not a voluntary participant and is presumed innocent, has every right to spotlight the prosecution’s partisanship and, in this case, to prioritize his political interests over his legal interests. (Whether doing so is wise is a different question.)

Our peg this weekend is a motion the defense has just filed seeking to have Smith held in contempt by Judge Tanya Chutkan. Our context, however, is politics — and at the heart of the politics of this prosecution is timing. On virtually every issue in the multiple prosecutions of Trump, especially the two federal indictments brought by Smith (the one before Judge Chutkan in Washington, D.C., and the Mar-a-Lago documents case before Judge Aileen Cannon in South Florida), if you want to know why the parties are doing what they are doing, think: political calendar.

Trump’s strategy is delay, delay, delay. It’s simple: If he can get trials in these cases postponed until after Election Day and win, a new Trump Justice Department will dismiss the indictments. The cases will be closed, Smith will be fired, and the new president will be out from under criminal jeopardy. (As we saw in the Trump Justice Department’s 2020 attempt to abort the prosecution of Michael Flynn, however, an ornery judge who is heedless of the Constitution’s commitment of unilateral prosecutorial discretion to the executive could try to thwart the Justice Department. Trump ended up pardoning Flynn because Judge Emmet Sullivan refused to dismiss the indictment — lawlessly, in my view. If it comes to this, it’s not hard to imagine Chutkan following Sullivan’s lead, leaving Trump to pardon himself — which would sure get his next administration off to a boffo start, no?)

As he laughably poses as a nonpartisan, straight-shootin’ prosecutor, totally unaffiliated with the Biden administration, Smith’s contrary strategy is pedal to the metal. He is the prime mover of the Democrats’ scheme, which all along has been to use indictments to rouse Trump’s base and help him win the nomination, then push the cases to trial in the lead-up to the election. At that point, the target public audience becomes not Trump’s adulators in the GOP base, but the broader electorate among which Trump is already unpopular. The mission is to get Trump convicted of some felonies, mortally wounding his chances of beating even an opponent as weak as President Biden.

There was no justification for Biden’s attorney general, Merrick Garland, to appoint a special counsel to investigate Trump. There was no conflict of interest in the Biden Justice Department’s probe of Trump, which went on for nearly two years before Smith’s appointment — a marked contrast from the Biden Justice Department’s investigation of Biden’s own son, in a case in which the president is implicated, where Garland refused for years to appoint a special counsel despite the neon-flashing conflict. (It happened only after the Biden Justice Department was embarrassed in court while trying to give Hunter Biden a sweetheart plea deal; and even in the grudging, after-the-fact appointment, Garland violated regulations by tapping David Weiss, the Biden DOJ official who’d orchestrated the sweetheart deal and has since taken pains to keep the president’s name out of any charging documents.)

The Biden administration brought Smith in for two reasons, both oozing with partisan politics: (a) to pretend that the planned indictment(s) of Trump were in the hands of an “independent” prosecutor, totally unconnected to the president and his Justice Department (in point of fact, Smith reports to the Biden Justice Department and exercises executive power that belongs solely to the president); and (b) to implement the scheme of timing the indictment(s) of Trump to first galvanize the GOP base to nominate him, and then get him tried and convicted prior to the election.

Consequently, Smith’s animating objective is to start Trump’s trial on (or as close as possible to) March 4, the date he pressed the Obama-appointed Judge Chutkan into setting for jury selection. And mind you, the prosecutor did that only after convincing the Trump-appointed Judge Cannon to set a May 20 trial date in the Florida case. As Smith well knows, federal criminal defendants are required to be present at trial (attendance at all court proceedings is a condition of their release on bail). Ergo, the plan was to have the Republican nominee stuck in courtrooms, rather than campaigning against Biden, from the beginning of March through the end of July — with, Smith hopes, sentencing proceedings after that. (Because of various complications, the May 20 Florida date is unrealistic; Trump may well get his wish of having that trial pushed beyond Election Day.)

If you grasp what each side is trying to accomplish time-wise, you understand pretty much everything they do in the election-interference case. Trump’s contempt motion is no exception. He is trying to achieve delay. In reality, the “contempt” his lawyers cite involves little more than Smith’s attempt to try to keep the case on track for a March 4 trial — which is not contemptuous, even if Smith is being aggressive.

To understand this, a bit more legal background is necessary.

In federal criminal law, pretrial appeals are disfavored. As I’ve previously explained, immunity from prosecution — the claim Trump has raised — is an exception to the rule. When Chutkan ruled against him on immunity, Trump thus appealed. In federal law (with exceptions we need not get into), the rule is that a case is in the jurisdiction of only one court at a time. When a case is appealed, jurisdiction is transferred from the trial court to the appellate court — in this instance, from Chutkan to the D.C. Circuit. The idea is that (a) the litigants in a single case should not be whipsawed between two (or more) tribunals, and more importantly, (b) the appellate court must rule on the case as it stands — the trial court is not at liberty to alter the record of the case while it is under the appellate court’s consideration.

As a result, once Trump appealed her immunity ruling, Chutkan was stripped of authority to act on the case. Jurisdiction will be returned to her only after the appellate process runs its course (which could include an appeal to the Supreme Court after the Circuit makes its ruling). Chutkan thus properly ordered that the case be “stayed” (essentially, frozen) in the trial court while the appeal proceeds.

Now, we come to the gray area — or, perhaps I should say, the yellow light, because where Trump sees a red light and fortified barriers, Smith sees nothing but green lights and open road.

See, many things that happen in trial litigation — indeed, most things — do not involve or require a ruling from the judge. In criminal cases, the prosecution has to make mounds of discovery — in complex cases, this can easily run into the tens of thousands of pages of documentary and digital files. It is on the basis of studying the discovery that the defense conducts its own investigation and makes pre-trial motions: some calling for more discovery; some asking for subpoenas to compel defense witnesses to appear at trial; some asking for identification of, and information about, the government’s witnesses; and some seeking dismissal of the indictment (e.g., Trump’s immunity motion), dismissal of various charges, the striking of portions of the indictment, and the suppression of evidence.

For its part, the government similarly seeks discovery from the defense, attempts to get insight into what defenses will be posited, and makes motions “in limine.” These are motions that seek pretrial rulings that disputed evidence or arguments should be allowed or foreclosed. For example, controversy attends Smith’s intention to offer extensive evidence about the Capitol riot, despite the fact that he has not charged Trump with any riot-related violent crime; for his part, Trump claims he wasn’t lying when he said the election was stolen, even though his top government advisers told him there was no actionable fraud, so there will be disputes about how much proof of voting-fraud claims he should be allowed to introduce — i.e., where should Judge Chutkan draw the line between permitting Trump to try to establish that he did not have fraudulent intent, which she must do, and preventing the trial from careening into a comprehensive rehash of “stop the steal,” which she probably need not abide?

Some of these pre-trial exertions will eventually call for a ruling from the judge. In fact, some will call for pre-trial hearings, which can be time-consuming. But other matters, such as discovery, usually proceed apace under rules well known to experienced criminal practitioners, with minimal judicial supervision. We can confidently say one thing about all these matters: Getting them done in a reasonably prompt and orderly fashion is imperative if the case is to proceed to trial on the schedule set by the court — March 4.

Yet there is so much to get done. This is a very complicated case, and the motion practice is certain to reflect that fact. I’ve contended from the start that, far from charging “meat and potatoes” offenses, Smith is stretching criminal statutes to the breaking point. The most consequential charge in the case, obstruction (two of the four counts, carrying a potential of 40 years’ imprisonment upon conviction), is so controversial the Supreme Court will soon be scrutinizing the Justice Department’s use of the charge in the Capitol riot context. Smith, moreover, has based the charges on the constitutionally fraught issue of a president’s state of mind while carrying out actions that — even if malevolent — were within the ambit of executive authority. Some of the attendant issues are unprecedented. As we’ve noted, the immunity issue has already triggered a pre-trial appeal in which the Supreme Court was asked (by the prosecutor) to intervene prematurely — and while the justices declined to do that, the issue is sure to land in their laps yet again once the Circuit rules.

With all that said, bear in mind that Smith only filed his indictment in August. It would be typical in a matter of this gravity and complexity to have a year or more of pre-trial proceedings. Despite that, and the enormous complications of a presidential campaign in which the defendant is a major-party candidate, Smith is trying to rush things along — with his eye squarely on the 2020 election.

With that as background, Fox News’ Brooke Singman reports that, on Thursday, defense lawyers submitted to Judge Chutkan what the Trump campaign is breathlessly calling the former president’s “powerhouse” motion to hold Smith in contempt. And what has Smith done to ignite such power bursting from the Trump house? Why, he had the temerity to . . . wait for it . . . provide the defense with “thousands of pages of additional discovery,” according to the motion. In fact, Smith even gave defense lawyers — you’ll want to be sitting down for this one — “a purported draft exhibit list! And not just that. Ten days later, the prosecutor served Trump’s counsel with an “expansive motion in limine,” which, while “teem[ing] with partisan rhetoric,” allegedly accuses Trump of “propagat[ing] irrelevant disinformation” inside and outside of court. The horror!

Let’s strip away the hyperbole and get down to brass tacks — timing. According to Trump, Chutkan’s stay order relieves him entirely of the burdens of any litigation. Smith, to the contrary, construes the order as meaning merely that Chutkan will not issue rulings on pending issues and will not take substantive actions until the immunity appeal is resolved. That, the prosecutor maintains, does not make the case disappear: Smith believes that he may and should continue providing required discovery, and that nothing prohibits him from filing in limine motions that he would eventually submit in any event — even if Trump is not required to respond to the motions during the stay, and even if Chutkan will not be ruling on them any time soon.

Trump, naturally, sees what Smith is doing. If uninhibited in carrying out the groundwork that moves the case along, Smith will argue — once the appeal is resolved and the stay is lifted — that Chutkan should require Trump to respond rapidly. The prosecutor will contend that Trump had plenty of time, during the stay, to review the materials he received from the prosecution. So, let’s say the appellate process is completed quickly — e.g., in rapid fire, the three-judge D.C. Circuit panel rules against Trump on immunity, the Circuit subsequently denies rehearing en banc (by all eleven Circuit judges), and the Supreme Court quickly declines to hear an appeal. Trump anticipates that Smith would then be poised to urge that all pretrial matters be wrapped up quickly and that the trial should proceed as close to March 4 as practicable.

To be sure, the March date is highly unlikely now, given both the stay due to the immunity appeal and the fact that the Supreme Court is not expected to weigh in on the obstruction statute until sometime in June. But by keeping things moving to the degree he can, Smith would preserve his goal of getting Trump tried and convicted while voters are making up their minds about whom to vote for.

That’s the opposite of Trump’s objective. The former president’s legal team can’t seriously believe Chutkan would hold Smith in contempt for merely executing the duties of a prosecutor. (In virtually any other instance, a defendant would scream bloody murder if the prosecutor tried to stop producing discovery just because the case was in an appellate pause.) But Trump is hoping Chutkan will clarify that, while the stay is in effect, Smith must (a) stop providing discovery and filing motions on the public record to which Trump would naturally be expected to respond publicly; and (b) understand that, because Trump is burdened with the appeal in addition to campaigning for the presidency (which he has a right to do), Trump is not expected to be perusing whatever materials Smith is disseminating. Put another way, Trump wants Chutkan to tell Smith that if the prosecution chooses to disseminate discovery and make motions during the stay, that will not help Smith achieve an early trial date once the stay is over.

The Trump team calculates that it will take several more weeks to resolve the immunity appeal. Even if he loses (as is likely), Trump’s aim is to use the delay to renew his argument that the March 4 trial date is unrealistic as well as unfair. He will contend that, since no trial-preparation work went on during the lengthy stay, the trial date must be delayed for a few months — and that as a practical matter this means it should be adjourned until after the 2024 election — in deference to (a) Trump’s right to campaign for office, (b) the public’s interest in an electoral process decided at the ballot box rather than in the courtroom, and (c) the Justice Department’s usual position that prosecutors should avoid even the appearance of trying to influence an election (a position Biden’s DOJ is flouting in its politicized determination to nail Trump in the midst of the presidential campaign).

Finally, a confession: I can’t help but chuckle at the fact that Trump has filed his contempt motion with Judge Chutkan while concurrently arguing that Chutkan has no authority to act. While he rips Smith for supposedly violating the stay order, Smith is merely providing material to the defense, not asking the judge to make a ruling; yet, here is Trump demanding that Chutkan make a formal ruling after only recently demanding that she cease and desist making rulings.

In any event, I wouldn’t hold my breath waiting for Chutkan to act on the contempt motion. Ordinarily, she might be inclined simply to say there is nothing untoward in Smith’s continuing to fulfill his lawful discovery obligations. (In my view, for what it’s worth, the judge should direct the prosecutor to stop filing motions on the public record during the stay — especially if Smith is going to keep whining about Trump’s public statements.) But the stubborn fact is that, even if the immunity appeal were resolved tomorrow and the stay thus lifted, the trial should not proceed until after the Supreme Court issues its guidance on the law of obstruction in June. No matter how much Smith and the Biden administration want a March trial and a May guilty verdict, it would not at this point make sense to schedule the trial prior to mid July — and even that would depend on whether the High Court’s obstruction ruling indicates that Smith’s indictment should be overhauled.

A mid-July trial would start smack in the middle of the GOP Convention. Since it’s estimated that the trial will take two to three months, that would make Smith’s ongoing election-interference prosecution of Trump the centerpiece of the Democratic Convention in August. The Biden Justice Department may be comfortable with that, but is that really the look Judge Chutkan wants? To be the judge who choreographed a criminal trial to coincide with a nationally televised four-day political rally by the party that just happens to have put her on the bench?

Trump is banking on the answer to those questions being “no.” Delay, delay, delay — if he can push the trial date off long enough, it could become untenable to have the trial at all until after the election. That’s why Smith is pedal to the metal. If he’s going to accomplish his campaign-calendar-driven mission, his need is speed.

No matter what issue arises in the federal criminal prosecution of Trump, focus on the timing. It will tell you all you need to know.