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Donald Trump's Strongest Legal Defense: Delay

Donald Trump's Strongest Legal Defense: Delay
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The former president is using a time-honored tactic in the two federal cases he faces: delay, delay, delay.

Video Source: Advocate Channel

(CNN) — While Donald Trump worked to make the most politically out of the start of a civil fraud trial against him and his namesake company in New York, the former president is using a well-honed tactic in the two federal cases he faces: delay, delay, delay.

On Wednesday, Trump asked again to delay his classified documents trial in Florida, citing issues over accessing evidence in the case. In the election subversion case in Washington, DC, Trump has tried to push back filing and other deadlines and also filed a motion to dismiss the entire case, arguing his actions were protected under presidential immunity.

Special counsel Jack Smith’s office has argued that even when Trump isn’t outright asking to push back a trial date, the delays he is seeking – related to how classified material is handled in both cases as well as to certain filing deadlines – would have that same effect.

Trump is trying to “intentionally derail” proceedings, and requests for delays on pre-trial issues amount to “unwarranted extensions,” prosecutors said in court filings.

While Trump has frequently sought to drag out civil cases against him over the years, delaying criminal proceedings could have different benefits. If he wins a second presidential term, he could seek to pardon himself if he’s convicted. And if he doesn’t win the White House again, he could argue in any appeal that he was railroaded and pushed to trial too quickly by his political enemies.

“It’s been obvious that part of the goal of former President Trump and his lawyers is to push all of this past the election and throw a Hail Mary pass and hope that A) He wins and then B) He can make whatever happens here go away,” said Ken Gormley, a constitutional scholar, professor of law and president of Duquesne University.

It would be unprecedented for a president to pardon himself.

Trump, in a September interview with NBC, said that while he was president and before the criminal charges against him were filed, attorneys told him that he could pardon himself. The former president also said it was “very unlikely” that he would issue such a pardon if elected.

Gormley told CNN he doesn’t believe there is a basis for such a pardon, adding: “That was not the intention of the framers whatsoever.” Gormley also noted that if Trump were elected and tried to pardon himself, it would “be a legal admission of guilt.”

In social media posts, Trump has already bemoaned that the DC trial is scheduled to start the day before 2024’s Super Tuesday primary and called the presiding judge, District Judge Tanya Chutkan, a “Trump Hating Judge.” (Chutkan last month rejected Trump’s demand that she recuse herself from the case.)

Trump’s election subversion case is scheduled for March 4 of next year while the Mar-a-Lago case in Florida is set for May 20.

While attorneys for Trump have cited a lack of access to classified material in the DC case as a reason to push back deadlines, prosecutors have noted that the classified material won’t be part of their case-in-chief against Trump and his alleged efforts to undo the 2020 election.

Chutkan has yet to rule on Trump’s efforts to push back certain deadlines but noted at the outset during an August hearing that “setting a trial date does not depend and should not depend on the defendant’s personal or professional obligations.”

The parties are set to appear before Chutkan on October 16 on a motion by prosecutors to impose a narrow gag order on the former president, who has attacked prosecutors and potential witnesses on social media.

Classified documents criminal charges

Attorneys for Trump also have argued against certain deadlines related to classified material in the Florida case, saying that they have yet to review much of the documents the government could bring against him.

In the documents case – which centers around classified documents Trump possessed after leaving the White House – defense attorneys have noted delays in getting access to the classified material in the case.

Trump’s attorneys say the sensitive compartmented information facility (SCIF) located in Miami, where the classified documents in the case are kept, does not currently house all the classified material and that some material in the SCIF has only been available to review in the past few days while Trump has been in trial in New York.

“The March 4, 2023 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once,” defense attorneys wrote in a court filing in Wednesday.

Unlike the case in DC, the charges against Trump in Florida revolve around his continued access to classified material and alleged attempts to conceal it from federal officials and his own attorney.

Prosecutors are set to ask Judge Aileen Cannon next week to allow them to summarize and delete certain classified material instead of giving Trump’s team full access to the documents.

The former president’s legal woes and hurdles extend beyond the two federal cases, as Trump faces a trial in New York in January over a defamation suit; another trial in New York over alleged hush-money payments scheduled for March; and the election subversion charges in Georgia, a trial for which has not yet been scheduled.

When it comes to the charges in Georgia and New York, Josh Chafetz, a professor of law and politics at Georgetown University Law Center, told CNN, “There’s absolutely no argument that Trump could pardon himself in the state case.”

If elected in 2024, Trump “might have a plausible claim to postpone a state trial (or, if he had already been convicted, to postpone any punishment) until the end of his presidential term,” Chafetz said.

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