The Daily - The Staggering Success of Trump’s Trial Delay Tactics

Episode Date: April 11, 2024

For former President Donald J. Trump, 2024 was supposed to be dominated by criminal trials. Instead, he’s found ways to delay almost all of them.Alan Feuer, who covers the criminal cases against Mr. Trump for The Times, explains how he did it.Guest: Alan Feuer, who covers extremism and political violence for The New York Times.Background reading: On Wednesday, Donald J. Trump lost his third try in a week to delay his upcoming Manhattan trial.But stalling has worked for Mr. Trump in the past.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, for Donald Trump, 2024 was supposed to be dominated by criminal trials. Instead, he's found ways to delay almost all of them. My colleague, Alan Foyer, on how Trump did it. It's Thursday, April 11th. So, Alan, we are on the cusp of the very first criminal trial of former President Donald Trump, which begins next week. So all eyes are going to be on Lower Manhattan. Yeah, and you'll definitely remember this case, Michael.

It's often shorthanded as the hush money case. It involves allegations that Trump used illegal accounting techniques to hide the fact that he had paid off a porn star. Prosecutors say he wanted to cover up a sexual affair that they had had so that the scandal didn't blow up Trump's 2016 presidential campaign. Right. You know, that case, which has always been a weird mix of like tabloid and election interference stuff, it's sometimes written off

as the runt of the various cases Trump is facing, even though that's not quite true. Nonetheless, it is the exception in one important way. It is actually going to go in front of a jury before the election takes place, before voters go to the polls. Let's not forget, Trump is facing four criminal cases in four separate cities.

And in three of them, he and his legal team have managed in various ways to throw sand into the gears of these proceedings to essentially grind them down to all but a halt. Right. It appears that Trump has found a way to push back basically 75% of the criminal cases brought against him until it looks like, for now, after voters are going to decide whether or not to re-elect him, which, if it stays that way, would be a pretty astonishing accomplishment of a kind in, I'd argue, both a legal and a political sense. Yeah, it would be a remarkable subversion of the normal course of justice. And look, for that reason alone, it makes sense that, like, studying some of the tactics that Trump's lawyers have used in each of these cases, right?

Filing motion after motion after motion after motion, many of which are filled with far-fetched or even frivolous claims. And one of the places where we've seen this in like the starkest terms is in Trump's classified documents case in Florida. This is the case in which Trump has been charged with taking home from the White House a trove of extremely classified documents containing all kinds of national defense secrets about military capabilities, nuclear programs, and storing them in crazy places in his home at Mar-a-Lago down in Palm Beach, Florida. Right. I'm remembering the photos. I mean, stages, bathrooms, closets. Yes. And on top of that, the government has accused him of obstructing this long attempt, this repeated attempts by the authorities to get that stuff back. In some sense, this case is the

strongest criminal case that has been brought against Trump. The facts are, at least alleged by the government, are pretty damning. Not to mention he's caught on a recording at one point showing some of this material to other people at Mar-a-Lago and Not to mention, he's caught on a recording at one point showing some of this material to other people at Mar-a-Lago and saying to them, hey, I shouldn't be showing you this stuff because it's classified. Right. A prosecutor's dream. Yeah, yeah, in many ways. So, Alan, if this seemed like perhaps the strongest of the four criminal cases against Trump, What exactly is the story of how he and his lawyers have delayed it to the point where it does not appear that there will be a trial before November, before the election?

Well, look, in short, Trump's lawyers have raised a series of far-fetched defenses, and the judge in this case has really engaged with these defenses and entertained these arguments in a way that, frankly, I don't think most federal judges would have. So tell us about both Trump's tactics and about this judge. We can do both at the same time, Michael. So let's not forget that the first big public event of this case was a search of Mar-a-Lago, Trump's private club and residence in Palm Beach in Florida. And the consequences of that search fall into the hands of a very unusual judge who catches this case. Her name is Aileen Cannon. She was appointed by Trump himself

in Trump's waning days in office. And she is a young judge and checks all the boxes, Federalist Society and clerked for a conservative judge herself. But while she may have had all the right kinds of experience, she just didn't have a lot of experience. So at the moment that she inherits this case, in August of 2022, she's only been on the bench two years. She's had a sum total of 14 trial days

over the course of four trials. She's only had four trials. Wow. And so she is the person who kind of inherits this enormous case involving, at that point, an FBI search of a former president's residence. And really, right from the beginning, Trump's lawyers just throw everything they can at this search warrant issue, trying to bog the entire investigation down. You know, and they end up challenging the search in a really weird way. They say because Trump is a former president, he has executive privilege over all the material that the FBI took out of Mar-a-Lago. And so the lawyers want Judge Cannon not only to appoint an independent arbiter to sort through all that material

and sort of take out the innocuous stuff from the stuff that's highly privileged, they want the judge to essentially interfere in this case to the point of freezing the FBI's investigation entirely until this independent arbiter's work is done. So that's a very ambitious request. Trump's lawyers want a major FBI investigation into a former president, very high profile, to just go on ice while some legal figure sorts through paper to see if something's in there that shouldn't be. Yes, exactly. And lo and behold, Judge Cannon

grants this request. She freezes the case. But the appellate court that sits over Judge Cannon, the 11th Circuit, very quickly and very forcefully smacks her down and reverses her. And essentially says, look, you have violated the principle of the rule of law. You can't just make an exception in this case because the guy happens to be a former president. That's not how U.S. law works. former president. That's not how U.S. law works. But in the meantime, there has been a delay, a delay of several weeks in a case where every day, every week counts. Yes, that's exactly right. So this was like the prelude to the main event, so to speak. This is before the indictment against Trump was filed. But we've seen very much the same dynamic

play out through the totality of the case once the indictment was formally brought. We'll describe how these tactics play out once there is an actual indictment against Trump for taking these documents. Sure. So, you know, within months of the indictment against Trump for taking these documents. Sure. So, you know, within months of the indictment being filed,

Trump's lawyers start submitting just a barrage of motions to Judge Cannon in this case. They make a really out-there motion to kind of rummage through the communications of all these various national security officials because they want to prove that the deep state collaborated in order to bring this case against Trump. Passing. They're filing motions saying like,

oh, other politicians and public figures have found classified documents in their possession, but they were never charged. And Trump is being singled out unfairly as the only guy who's been charged in this case. So they're burying Judge Cannon in paper. They are burying her in paper. And things are really just sort of piling up on her desk in a way that, at least from the outside, looks like she's really struggling to prioritize decisions.

And she's leaving this logjam of unresolved issues that just keeps growing and growing. And one of the ultimate consequences of all of this is that she can't set a trial date yet because she hasn't made all of these subsidiary decisions. So the logjam itself makes the delay problem even worse. And of course, none of this seems all that surprising because because as you have said, she is a brand new judge. She's never before handled a case on this scale. Sure. And it's very clear that Trump's lawyers

are leveraging both her inexperience and some sort of prior indication by her that she is willing to entertain unorthodox arguments. And so one of the most unorthodox arguments that they make in a motion to Judge Cannon is one to dismiss the case altogether because of a law known as the Presidential Records Act. Okay, and here you're going to have to educate us. Yeah, so the quick gloss on the Presidential Records Act. Okay. And here you're going to have to educate us. Yeah. So the quick gloss on the Presidential Records Act is that it was passed after Watergate to essentially ensure that most records created during a president's time in office remain in the possession of the government.

They go to the National Archives. And while the law does sort of permit presidents to lay personal claim to things like diaries they kept while in office or notes or stuff of an obvious personal nature. The point is that the people through the government and the archives own the official records of a presidency. That seems like it would be a law that would be very bad for Trump in this case.

Right, except he has flipped this law entirely on its head in his defense. He argued in a motion that was filed at the end of February that under the small section of the law that allows presidents to designate records as personal, he has designated all of this super secret, highly classified military and defense records as personal and his own property. Huh. And to make matters even a little stranger, he's not saying that he issued a proclamation or wrote a formal notification that he did this. He's saying the fact that he took these records out of the White House to his home in Florida de facto shows you that they are his because if they weren't his, he would have given them back. He's basically saying

these classified government records, including nuclear plans and war plans, they're my private records because I took them, which sounds a little bit like they're my private personal records because I say they are. Right, exactly. And so how does Judge Cannon respond to this innovative, unexpected, unorthodox motion? Well, look, the fact is that most federal judges, when presented with this claim, would have dismissed it out of hand, would not have held a hearing, would not have entertained it, would have said, thank you, Mr. Trump, for your argument. Motion denied. But Judge Cannon decides to take it quite seriously. And that has the effect not just of further delaying the process

as she decides how to grapple with this argument, but also it sets up the possibility that she could kill this case altogether without it ever going in front of a jury. We'll be right back. Alan, at this point in our story, this case of Trump and the missing classified documents is delayed and delayed. And now Judge Cannon is engaging with this very unusual argument that Trump can almost wordlessly authorize himself to take classified materials home from the White House. I have to imagine that federal prosecutors are trying to fight this in every way imaginable. Yes, they hate this claim and they are absolutely fighting it every which way they can. And let's not forget,

the person in charge of the prosecution at this point is the special counsel, Jack Smith, who was brought into the case really when Trump announced he was running for president. So there was a sort of, you know, some independence from the Justice Department. Right. And so what Smith does when confronted with this argument advanced by Trump is, of course, you know, he files a motion trying to oppose Trump's motion to dismiss. And then there's a hearing. And at the hearing, you know, his prosecutors are telling Judge Cannon, this is not what the Presidential Records Act says. Trump has this wrong. The idea that he could sort of like wordlessly transform this material into his own personal property is absurd. And you should just get rid of this argument altogether. And

what's interesting is that for a moment there, it really looked like Cannon was going to rule against Trump's Presidential Records Act defense. But then, a few days after the hearing, she made an extremely unusual move. And what she did was she asked both sides, the defense and prosecution, to write jury instructions that sort of adopted Trump's Presidential Records Act defense. And why would she want this in jury instructions, especially if she has cast doubt on it? Yes, well, you've hit on exactly what made this whole thing so weird and curious. Just as a basic matter, jury instructions are generally decided on the eve of a trial. So it's weird to be

thinking about how to instruct a jury when the jury hasn't even been selected yet. There isn't even a solid trial date for this case at this point. Right. But the idea that we're working with here is simply that jury instructions are the way that a judge explains the case to jurors. Sort of what's the law here? How should it be interpreted? You know, I think a familiar example might be in a murder trial, for instance. A judge will explain to the jury the legal difference between, say, manslaughter and homicide. Sort of guiding them in how to interpret the law so that they

can decide whether or not a person has actually broken it. The unusual part in this case is that Judge Cannon has seemed to adopt Trump's own interpretation of the Presidential Records Act. Wow. of the Presidential Records Act. Wow. And if she was using that concept to help, you know, guide the jury towards making a decision on guilt or innocence,

it was almost like she was nudging them towards an acquittal. Because if the stuff is indeed his own personal property, then the jury only has one way to decide, right? Right. If it really is his personal property, they have to acquit. And so nobody was quite sure, including, mind you, Jack Smith, about what she was doing because it was so unusual and unorthodox. Right. And if you're the prosecutor, you might be confused about what the judge is doing here,

but you're definitely not confused about how dangerous it is to your case. And to add something even more damaging to the case, once a jury is seated, the concept of double jeopardy comes into play, right? That's that you can't be tried twice for the same crime. So if the jury acquits Trump using these jury instructions based on his own defense, it's over. There's no appeal. There's nothing Jack Smith can do about it. Case closed. Move on.

Got it. So we're kind of back where we were a few minutes ago, which is to say federal prosecutors really do not want Judge Cannon to in any way endorse this. Correct. Really do not want Judge Cannon to in any way endorse this. Correct. And so what ends up happening is they file a barnstormer of a response to Judge Cannon's request for jury instructions. It's the kind of stuff that you never hear prosecutors say to a federal judge. Like what? Well, for example, one, you've got this whole thing wrong.

Your idea that the Presidential Records Act has anything to do with this case is totally legally flawed. It's a fiction that Trump made up out of whole cloth, and it belongs nowhere in this case at all. And so they ask Judge Cannon to do two things. They say, look, the normal way to proceed here is just go back to the motion to dismiss this case based on the Presidential Records Act and reject it out of hand. Just tell Trump you can't have this case thrown out before it goes to a jury making this argument.

And don't put this stuff into the jury instructions. And he gave her jury instructions that, in his mind, would follow the law and had nothing to do with the Presidential Records Act. So it sounds like this motion from the federal prosecutors, from Jack Smith, has the quality of almost tutoring Judge Cannon in the ways of the law, in the order in which she should be doing things. Basically, it's Jack Smith saying to Judge Cannon, you really don't get this. Correct, but in a not-so-gentle way. Okay, so what does Judge Cannon do with this perhaps not- diplomatic response from the federal prosecutors? She kind of splits the baby. On the one hand, she gives Jack Smith a little bit of what he wants. She rejects altogether Trump's motion to dismiss the case based on the Presidential Records Act.

And she agrees with Jack Smith that, like, this notion that Trump declared this stuff his own personal property, it's not enough just to kill the case before it even goes to trial at all. Got it. And yet, and yet, in a very prickly way in her order, she tells Jack Smith that she's going to keep this idea of using the Presidential Records Act in the jury instructions open. And so she's essentially allowing the possibility that there's still this sort of existential threat hanging over the case when it eventually goes into jury deliberations. Got it. So this particular delay tactic from Trump and his lawyers, This effort to kind of invert the meaning of the Presidential Records Act, it's not just a very successful delay tactic,

which, as we've established, it very much seems it is. It now has become a giant threat to the federal government's case and potentially a strong basis for Trump to prevail in this case that seemed very strong and a case that Trump would have a hard time willing out of. Yeah, Trump's lawyers raised this wacky argument in the kind of normal way you do it, in the context of a motion to dismiss. So what's most unusual,

setting aside the unusual nature of the defense itself, is the way Judge Cannon said no to the motion to dismiss and yet allowed this wacky defense argument to linger in the context of jury instructions. And that was not something Trump's lawyers asked for. That was wholly of Judge Cannon's devising. She came up with that idea herself. That's what makes this all so strange.

So now I'm curious, Alan, if this classified documents prosecution had proceeded down a traditional, normal path without this very unique interplay of Trump's delay tactics and what seems like, for him, the lucky draw of a pretty inexperienced, slow-moving judge willing to entertain a lot of his unusual arguments. When do we think this trial would have probably started? Well, Judge Cannon had initially said it was going to start at the end of May, but then she very quickly kind of said that was not going to happen. I mean, she's got like 15 to 20 motions sitting on her desk that she hasn't decided yet.

Wow. And, you know, some of them could wind up being appealed. She could set hearings, right, two or three days to argue about this stuff. And so it's just, she has let a mountain of unfinished business complicate the trial schedule. So that is how we arrive at this reality that Trump's strategy has already basically succeeded

in keeping this case from unfolding before Election Day. Yeah, and don't forget, it's not just in that case. You know, two of Trump's other criminal cases also don't have trial dates yet. I mean, you know, his case in Washington involving January 6th and the run-up to it, he used a kind of similar wacky motion to dismiss that he managed to get all the way up to the Supreme Court.

And, you know, we're waiting for the Supreme Court to render a decision to see whether or not that case sneaks in before the election or not. And then in Georgia, where Trump has been charged also with election interference, he kind of capitalized on this romantic relationship that the prosecutor, Fannie Willis, had with one of her deputies and bury the judge with a bunch of motions claiming that there was a conflict of interest due to that relationship. And that ate up, you know, a period of almost two months. So I want to know how you're thinking about this as someone who has covered courts and

criminal justice for so long. Trump didn't invent the idea of seeking to delay the wheels of our criminal justice system. Corporations have been doing it for a long time. Rich people with fancy lawyers, they do this kind of thing. But it does seem that he has been stunningly successful at it. And I wonder how you think about it. Well, look, one way to think about it is that the criminal justice system itself just really isn't set up to handle a situation when you have a sophisticated group of lawyers who really just wake up and just figure out ways in which to delay and hinder each of the four cases that Trump is in.

That's all they're doing. The entirety of the strategy here is to file motions of oftentimes, you know, limited legal value just to kind of gum things up. And if these lawyers are able to kind of present a unified strategy in each of the cases, there's very little that the prosecution can do about it except respond in a really reactive way, because they are essentially having to play Trump's game at this point. And the way the system is set up, you know, our presumption of innocence sort of permits this kind of gaming of the system because we want criminal defendants, obviously,

to try everything they can to sort of defend themselves. But if that fundamental part of our criminal justice system is being leveraged, perhaps in bad faith, there's really nothing that the government can do about it except go through it. That's our only choice in all of this. Well, Alan, thank you very much. We appreciate it. Well, thank you, Michael.

This week, Trump undertook multiple efforts to delay the one criminal trial scheduled to begin before the election, the Hush Money case. One of those efforts, filed on Wednesday, involved Trump directly suing the judge overseeing the trial. So far, none of the delay tactics have succeeded, and the trial is scheduled to begin on Monday. We'll be right back. Here's what else you need to know today. On Wednesday, the government said that inflation rose in March, potentially undermining the case for reducing the country's high interest rate, as many, including President Biden, have pushed for.

The Consumer Price Index, a measure of prices across the economy, rose 3.5 percent in March compared with a year ago, a higher number than economists had forecast. So how concerned are you about the fight against inflation stalling? And do you stand by your prediction for a rate cut? Well, I do stand by my prediction that before the year is out to be a rate cut. During a news conference at the White House, Biden said he remained confident that the Federal Reserve would soon reduce interest rates. And he defended his administration's overall record on inflation. We have dramatically reduced inflation from 9% down to close to 3%.

We're in a situation where we're better situated than we were when we took office, where inflation skyrocketed. Today's episode was produced by Mary Wilson, Eric Krupke, and Diana Nguyen. It was edited by M.J. Davis-Lynn, with help from Rachel Quester. Contains original music by Rowan Emisto and Alisha Ba'itu, and was engineered by Chris Wood. Our theme music is by Jim Rundberg and Ben Landvirk of Wonderland. Our theme music is by Jim Grunberg and Ben Landsberg of Wonderland. That's it for The Daily. I'm Michael Barbaro.

See you tomorrow.