Claims by Donald Trump and his lawyers that holding any of the four criminal trials he now faces before the US election in November would be “election interference” lack a solid legal basis and are brazen ploys to delay trials until post election, former justice department officials say.
As he campaigns to return to the White House, Trump is facing unprecedented legal and political perils: trials are pending in four federal and state jurisdictions, where he’s been charged with 91 felony counts including 17 about conspiring with allies to overturn his loss to Joe Biden in 2020.
To thwart any damaging verdicts and negative trial coverage pre-election, the former US president and his lawyers have pushed legal and political arguments by invoking election interference and presidential immunity, as they’ve sought to convince judges and courts to postpone trial dates until after November.
Trump’s drive to have trials held post-election is premised heavily on hopes of winning the presidency again, and then telling DoJ to kill the federal charges, say DoJ veterans.
So far, crying election interference in order to postpone trials until after election day hasn’t achieved much, but his tenuous claims of absolute immunity for all his actions as president have succeeded in pushing back some key trial dates this year in tactical wins for Trump.
Presently, Trump is due to stand trial on 25 March in New York where he faces 34 felony counts from Manhattan district attorney Alvin Bragg who is charging he falsified business records to conceal payments of hush money in 2016 to porn star Stormy Daniels who alleged an affair with Trump.
After Bragg charged him last spring, Trump told a gathering at Mar-a-Lago that the New York case and the three other federal and state cases then under scrutiny by prosecutors amounted to “massive election interference at a scale never seen”.
Trump, who has said he’s innocent of all the charges, repeated the specter of election interference again late last month on his Truth Social platform, saying prosecutors “AIMED for the various trials to come up during my campaign”.
Trump also erroneously claimed that “very strict rules and regulations” of DoJ bar prosecuting “a Political Opponent, or anyone, RIGHT IN THE MIDDLE OF HIS/HER CAMPAIGN”.
But ex-federal prosecutors say Trump has distorted DoJ guidelines to bolster bogus election interference claims.
“Trial schedules of criminal cases ought to be immune from allegations of election interference by Trump and his lawyers,” said Paul Pelletier, the former acting chief of DoJ’s fraud section.
“Once anyone is charged with a crime, the setting of a trial is purely within the purview of the independent judiciary and should be both blind and immune to outside political calendars and machinations by Trump or his lawyers.”
Other former DoJ prosecutors concur.
“There has been a long-standing policy against bringing new federal charges in the run-up to an election,” former federal prosecutor Paul Rosenzweig told the Guardian “But there has never been a policy against continuing an ongoing case just because a criminal defendant becomes a candidate for office.”
“If there were such a policy, a charged criminal could avoid trial by the simple expedient of running for office.”
Still, some trial dates have been delayed for other reasons including cases that Special Counsel Jack Smith brought charging Trump with conspiring to overturn Joe Biden’s win, and for mishandling hundreds of classified documents by taking them to Mar-a-Lago after he left the Oval Office.
The supreme court last month handed Trump a victory when it agreed to hear his claims of absolute immunity involving the election subversion charges and scheduled oral arguments for late April, setting back a trial once slated for March until probably August or September at the earliest.
In one filing with the high court, Trump lawyers raised election interference arguments: “The Special Counsel seeks urgently to force President Trump into a months-long criminal trial at the height of campaign season, effectively sidelining him and preventing him from campaigning against the current President.”
Similarly, as the legal jousting by Trump lawyers, prosecutors and judges has heated up, Trump’s team keeps raising election interference claims as they seek to postpone trials until post election day.
Trump lawyer Todd Blanche argued for holding the classified documents trial post election at a 1 March hearing by Florida district judge Aileen Cannon, who is overseeing Smith’s case charging Trump with mishandling classified documents.
“A trial that takes place before the election is a mistake and should not happen,” Blanche said at the hearing. “You’re talking about taking Mr. Trump off the campaign trail for blocks of time for really no reason.”
Cannon has not yet set a trial date, but has postponed the original starting time from May in part due to the start this month of the New York hush money trial.
Former DoJ officials dismiss Trump’s election interference arguments as fallacious and dangerous, given the seriousness of the charges and the stakes for US democracy.
“The idea that prosecutions addressing systematic efforts to overturn legitimate election results are themselves ‘election interference’ is just ridiculous,” said former deputy attorney general Donald Ayer who served during the George HW Bush years. “They are the only way that the integrity of our electoral process can be defended.”
Other former DoJ officials raise related points.
“Trump’s claims of political persecution and election interference are part and parcel of the same disease, his crippling narcissism,” said former justice official and White House lawyer for part of the Trump years Ty Cobb. “It’s classically hypocritical coming from the unchallengeable king of election interference.”
Still, Trump and his lawyers have kept up a barrage of election interference claims with an eye to getting trial dates deferred.
Trump lawyer Blanche in February invoked election interference in trying to persuade New York judge Juan Merchan who is overseeing the hush money trial to postpone it. Blanche argued that since primary season has begun it is “completely election interference” for the trial to proceed on the 34 count indictment against Trump.
“That is not a legal argument,” Merchan shot back.
In a similar vein, Trump lawyer Steve Sadow argued in an Atlanta court filing last year that putting Trump on trial this August as Georgia prosecutors requested on 13 counts of conspiring to overturn his 2020 loss there, would be “the most effective election interference in the history of the United States”.
The trial date for the case, which was brought against Trump and 18 codefendants by Fulton County district attorney Fani Willis, is now in limbo in part because Willis has been charged with a potential conflict of interest by one defendant which now awaits a ruling from a Georgia judge.
In one brazen twist, after New York judge Arthur Engoron in February ruled in a civil fraud trial that Trump must pay $450m dollars because he conspired to manipulate his net worth to trick lenders, Trump attacked the decision as “an election interference ploy” during a Michigan campaign rally.
Trump’s torrent of election interference claims smack of hypocrisy and are hard to fathom, say DoJ veterans.
“Trump and his lawyers live in an irony-free zone, where someone who profited from foreign election interference in 2016, tried to extort it in 2020, and falsely cried fraud to whip up those who tried to interfere with certification in 2021 now believes crying ‘electoral interference’ will rally his base,” said former federal prosecutor Dan Richman, who now is a law professor at Columbia “And for some, maybe it will.”
Richman added that “Trump may also be projecting his own behavior onto others, since he’s unable to understand why public officials would simply want to act in the public interest”.
