Trump’s Early Legal Steps Hint At Delays On Road To Trials

Donald Trump is entitled to a speedy trial like every other criminal defendant in America. But that doesn’t mean the former president wants one.

Facing two indictments so far as the 2024 presidential election approaches, Trump and his attorneys are taking their time to beef up his legal team and planning to fight every scrap of evidence while constantly appealing, which will delay his trial date.

“What’s the rush?” said a source familiar with the Trump legal team's thinking.

To Team Trump, procrastination makes sense. His legal problems have only galvanized Republicans around his 2024 presidential nomination bid, and winning back the White House opens up the prospect of a self pardon or a straight-up order to the Justice Department to drop its prosecution on any federal charges he faces, the political consequences be damned.

But that means running out the clock before the Nov. 5, 2024, presidential election. 

On Tuesday, Trump’s personal aide and co-defendant in the classified documents case Walt Nauta delayed his arraignment on charges in the Florida case because he had not yet found a lawyer admitted to practice in the district. It was the second delay for Nauta, who was originally supposed to be arraigned on June. 13. In New York, in his case related to hush money payments to a porn star, Trump’s lawyers argued the state case should be moved to a federal court. 

And that’s just in a single day. 

But according to Trump’s team, there’s nothing unusual in making sure he and Nauta have adequate legal protection, even if it takes a few extra days. They acknowledge Trump plans to use every tool in his legal defense and they counter-accuse the DOJ – run by a Democrat appointed by a Democratic president – of rushing a prosecution out of fear that voters would side with Trump and elect him president. 

“The Biden Justice Department wants to rush this trial before the presidential election and it’s further evidence that this is a purely political hit job designed to protect their boss and go after their boss's political rival,” said Mike Davis, an attorney with the conservative Article III Project that is part of a loose-knit network of conservatives who have informally advised Trump.

“The Constitution and the Speedy Trial Act protect defendants, not the government,” Davis said. “There are complicated legal, procedural and evidentiary issues, and [former] President Trump has an absolute right to due process and a fair trial. And if that means this trial happens after the presidential election, then that’s what fairness requires.”

A Trump spokesperson declined to comment as did DOJ.

Trump’s lawyers face a deadline next Thursday to propose a trial date on the federal charges in the document case. There, they are widely expected to ask that the schedule go beyond the August and December 2023 start dates proposed respectively by the federal judge and federal prosecutors. Trump’s lawyers have been slow to file the required questionnaires supporting their applications for the security clearances needed to review classified evidence, DOJ suggested in a legal filing. The ex-president on Wednesday also filed a countersuit against E. Jean Carroll, the writer who successfully sued him for sexual abuse and a $5 million defamation payout. 

All signs point to Trump eventually seeking a U.S. Supreme Court ruling in the New York state case on his complaint about moving the indictment to federal court, a request that could further delay efforts by prosecutors to try him on state charges by next March. 

The Supreme Court is a familiar forum for Trump’s delay efforts, with previous appeals in proceedings related to his personal tax returns and grand jury records from former Special Counsel Robert Mueller’s investigation leading to lengthy delays that blunted their political impact.  

Nauta’s delays in hiring an attorney struck Shan Wu, a former prosecutor, as an example of slow walking the ex-president’s legal travails. 

“I actually feel that was partly a delay tactic,” said Wu, a defense lawyer who previously represented Rick Gates during his criminal proceedings before the Trump senior 2016 campaign aide switched course to cooperate with the Justice Department as part of a guilty plea. “There’s no way they couldn’t get him an attorney” for the first trial date, Wu said.

Nauta’s arraignment is now scheduled to take place on Thursday in Miami.

'Additional time' needed

Trump’s political prospects look much better than his legal ones. The former president remains the Republican nomination frontrunner, by a large margin, in early polls for the 2024 GOP race. And a Morning Consult poll on Tuesday showed him with a slight lead in the 2024 general election over President Joe Biden. 

“Donald Trump's best defense, frankly, is being elected president again,” said Barbara McQuade, a professor at University of Michigan Law School and the former Obama-era U.S. attorney for the Eastern District of Michigan. “If he can delay the trials past his election, if he can get elected, he can do all kinds of things.”

With a win next November Trump could be the first president to attempt to apply the presidential pardon powers on himself. He reportedly flirted with the idea before leaving office in January 2021 but denied in a mid-May interview with The Messenger that he did anything of the sort: “No, I didn’t. Why would I sign a self-pardon when I did nothing wrong?”

While there are questions about the legal validity of a presidential self-pardon for federal crimes, those could be tied up in court for years. A president has no power over pardoning state crimes.

On paper, Trump is scheduled to go to trial in August on the federal charges in the U.S. courthouse in Fort Pierce, Fla., and next March in Manhattan on the charges in New York. Neither date is expected to hold. 

The Justice Department last week requested a delay on the Aug. 14 start date proposed by U.S. District Court Judge Aileen Cannon until mid-December, citing delays in paperwork needed to get security clearances for Trump’s lawyers and the fact that Nauta does not yet have an attorney.

Many experts say the political realities, Trump’s dilatory nature and the complexities of the documents – particularly when it comes to the laborious process of getting classified records properly redacted for use in open court – all but ensure the trial will happen after the presidential election.

Defense lawyers are required to file a form called an SF-86, which is the federal questionnaire for national security, to obtain the interim clearance necessary to start reading some of the classified records in the case.

“To date, not all of the defense counsel have submitted their SF-86s,” Jay Bratt, who heads the Justice Department’s counterintelligence division and is a prosecutor in the federal documents case, said in a court filing last week.

Trump’s lead attorneys, Todd Blanche and Chris Kise, are in the process of getting security clearances, according to a source who spoke with Trump's legal team.

Even then, it will take additional time for lawyers to obtain final security clearances necessary to read the very most sensitive documents. Final clearances may be granted 45 to 60 days after the SF-86 forms.

In a motion seeking to move the trial date from August to December, Special Counsel Jack Smith cited the additional time necessary for Trump’s team to obtain and review the evidence in the case.

“Even with the prompt production the government has arranged, the inclusion of additional time for defense counsel to review and digest the discovery, to make their own decisions about any production to the government, and for the government to review the same, is reasonable and appropriate,” Smith said in the motion.

Trump’s defense lawyers are expected to file an opposition to the prosecution’s trial date motion “addressing their objections to the government’s proposed dates,” Smith said in the filing.

Trump’s lawyers have until July 6 to respond to the motion to postpone the trial. A conference on how to handle classified material during the proceedings is scheduled for July 14.

'Delay will be part of the strategy'

As the Florida case moves forward, Trump’s defense strategy is likely to include motions that will significantly delay the trial, McQuade said.

Trump’s team plans to file a motion to suppress evidence obtained from his former lawyer Evan Corcoran, on attorney-client privilege grounds, according to sources familiar with the discussions of his defense. Some speculate he could file a longshot motion claiming he’s the target of selective prosecution, or a motion to suppress the fruits of the search of his Mar-A-Lago estate.

If Trump were to obtain a favorable ruling on any of those, the Justice Department would be free to appeal to a higher court. But at a cost.

“Getting that appeal resolved, could take us past the November 2024 election, and that’s probably a win,” McQuade said. “So I think delay will be part of the strategy.”

The publication this week by CNN and the New York Times of a key piece of evidence in the evidence may also affect the proceedings. Defense lawyers could file a motion seeking to suppress the 2021 recording of Trump discussing a classified document in Bedminster, N.J., from the trial on the grounds that its early release was unfairly prejudicial.

Lawyers in Trump’s orbit show no signs that they want any case against the former president to move quickly.

“If you ask three different people in Trump world what’s going on, you’ll get five different answers,” a source familiar with the discussions told The Messenger. “But the reality is there’s no rush to do this. This seems to be their posture: ‘The case is probably going to happen after the election anyway [on Nov. 5, 2024]. So what’s the rush?’”

Marc Caputo contributed to this report.