Donald Trump sat glowering in court Tuesday, arms crossed over his chest, while his lawyer entered a plea of not guilty to a 37-count federal indictment on espionage, conspiracy, obstruction and other charges. Hours later, addressing a rally and then a candlelight dinner at his Bedminster, New Jersey, golf club for donors who paid $100,000 apiece for the honor, Trump found his voice and proclaimed that he “had every right to keep” the classified documents at issue.
The day’s events reflected the Janus-like political and legal strategy that Trump will follow going forward. Outside the courtroom, he will beat the drums and raise money off what he portrays as a witch hunt; in court, his team will strive to put off a trial he can’t possibly win on the merits.
Trump is engaged in an outlandish and, for the country, very dangerous plot to delay the case until he can end it by winning the presidency in 2024. At that point, he could just order the Department of Justice to stand down.
Note that Trump wouldn’t have to run the legal risk of pardoning himself at that point. Even if he is speedily convicted — a prospect made considerably less likely by the assignment of Trump-appointed Judge Aileen Cannon to the case — his conviction would almost certainly still be on appeal by January 2025, allowing him to simply order the department to drop the case.
How can Trump, abetted by Cannon, go about maximizing the delay? Through a series of pretrial motions, all lacking merit to various degrees but nevertheless likely to take up considerable time.
We already have a good sense of what those motions will look like. The first out of the box may well seek to dismiss the charges on prosecutorial misconduct grounds.
It was that issue that Trump’s lawyers foolishly chose to emphasize in their last-ditch effort to talk top Justice Department officials out of bringing the charges. And Trump’s former lawyer Timothy Parlatore has suggested that it would be the subject of the first motion Trump would bring before Cannon.
His team’s allegations of misconduct are exceedingly vague and scattershot. The most concrete seems to involve a conversation between Justice Department lawyer Jay Bratt and Stanley Woodward, who represents Trump’s valet and co-defendant in the case, Walt Nauta. Woodward has reportedly alleged that Bratt referred to his pending application to become a judge, the implication being that he was suggesting his vigorous representation of Nauta could jeopardize his judicial candidacy.
It’s a dubious charge on the facts. The Criminal Division of the Justice Department has nothing to do with appointing judges, and Bratt seems far too experienced and respected for such a ham-handed intimidation attempt.
More important, Trump’s shrill claims of misconduct are unlikely to get out of the gate legally. Both the Supreme Court and the 11th Circuit Court of Appeals have made it clear that allegations of prosecutorial misconduct are almost never sufficient grounds to dismiss such criminal charges. A defendant whose rights have been abridged may have other remedies, but the courts have ruled that dismissing an indictment requires a defendant to show that the asserted misconduct “substantially influenced the grand jury’s decision to indict” or that there is “grave doubt” on that score.
Countless defendants have complained bitterly about prosecutorial misconduct far more serious than anything Trump has alleged to no avail.
Even with Judge Cannon making the call, there’s really no prospect that Trump’s allegations could result in dismissal of the charges. But he still can and will bring the motion, and, however hopeless its prospects, it could eat up a couple months or more. In support of the motion, Trump’s lawyers will likely push for an evidentiary hearing to depose prosecutors or question grand jurors, which the government would obviously oppose. And if Cannon is remotely as indulgent of these dubious claims as she was of Trump’s even more far-fetched arguments against the warrant to search Mar-a-Lago, the issue could drag on for some time.
Ultimately even Cannon can be expected to apply the law that clearly renders the motion untenable — but not before Trump has had that many more opportunities to use his candidate’s bullhorn to amplify his claims of prosecutorial misconduct in the public sphere. All of this can only aggravate the bitter polarization that is his lasting and continuing legacy.
And that’s just one of the unsound motions Trump’s team can be expected to bring. We can also expect challenges over his former lawyer Evan Corcoran’s notes, the terms of use of classified documents and more, providing further opportunities for a delay.
It has begun to seem as if justice has finally caught up to Trump, a prolific escape artist dating back decades. But the tight spot he now finds himself in — surely the most threatening of his career — has an exit route. I still think the odds favor the rule of law, but the confluence of a political triumph, a solicitous judge and immense luck could yet help him elude accountability.
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ABOUT THE WRITER
Harry Litman is the host of the “Talking Feds” podcast. @harrylitman
