The Staggering Success of Trump’s Trial Delay Tactics

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

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

75 percent of the criminal cases brought against him until it looks like for now, after voters

are going to decide whether or not to reelect 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

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 farfetched 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

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 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

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,

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

very high profile, to just go on ice while some legal figure sorts through paper to see if

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

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

indictment against Trump for taking these documents. Sure. So, you know, within months

Judge Kannon 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. 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

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,

She's never before handled a case on this scale. Sure. And it's very clear that Trump's lawyers

entertain unorthodox arguments. And so one of the most unorthodox arguments that they make in a

motion to Judge Kannon 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 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

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

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

not have held a hearing, would not have entertained it, would have said, thank you, Mr. Trump, for your

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

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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

I have to imagine that federal prosecutors are trying to fight this in every way imaginable.

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 that 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.

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, and if she was

using that concept to help 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? 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.

you're definitely not confused about how dangerous it is to your case.

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.

federal prosecutors really do not want Judge Cannon to in any way endorse this.

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.

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-so-diplomatic

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 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, 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.

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

potentially a strong basis for Trump to prevail in this case that seemed very strong and a case

in the kind of normal way you'd 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.

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?

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. 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.

in keeping this case from unfolding before Election Day. Yeah, and don't forget, it's not

I mean, you know, his case in Washington involving January 6 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 buried 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

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.

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.

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% in March compared with a year ago,

a higher number than economists had forecast.

and do you stand by your prediction for a rate cut?

Well, I do stand by my prediction that before the year is out, there'll be a rate cut.

Reserve would soon reduce interest rates, and he defended his administration's overall record

in a situation where we're in a better situation than we were when we took office, where inflation

is skyrocketing.

M.J. Davis-Lynn, with help from Rachel Quester, contains original music by Rowan Emisto and

Alishaba Eto'o, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and

Van Lansberg of Wonderland.

That's it for the daily. I'm Michael Bilboro. See you tomorrow.