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Trump’s Legal Strategy: Delay, Delay, Delay
Here are six defenses Trump’s lawyers might employ to stall the proceedings.
AS FORMER PRESIDENT DONALD TRUMP has made clear in speeches and social media posts over the last few days, he does not think much of the federal indictment against him, in response to which he will appear in federal court today.
But whether any of the gripes Trump has been airing could possibly translate into a legal defense in the case is a valid question. (After the indictment was unsealed, his lawyers, Jim Trusty and John Rowley, resigned. Todd Blanche—who represented Paul Manafort, chair of Trump’s 2016 campaign—is picking it up as lead counsel.) The government must prove its allegations beyond a reasonable doubt before a Florida jury in order to convict Trump of anything, and until then, Trump is legally innocent until proven guilty.
Even without knowing the evidence the government has compiled against Trump, it is possible to imagine some of the defenses his lawyers might consider. Here are a half-dozen that it seems plausible we might hear.
1. The special counsel engaged in prosecutorial misconduct.
After Manhattan district attorney Alvin Bragg indicted Trump for alleged crimes relating to hush money payments to Stormy Daniels and others in the lead-up to the 2016 election, the Trump 2024 campaign saw a surge in donations. So, too, with this indictment: Trump immediately began beating the “witch hunt” drum, asking for donations from his supporters on Truth Social Thursday night and Friday morning to defend against an attack by “the Deep State” on the “forgotten, hardworking men and women of this country.” He is expected to host a fundraiser this evening, the night of his arraignment, in which the campaign expects to raise another $2 million.
A possible argument around prosecutorial misconduct is already being floated. On Thursday, Trusty claimed on CNN that the government threatened counsel for Trump’s alleged co-conspirator, aide Waltine Nauta, with torpedoing eligibility for a federal judgeship if Nauta didn’t turn on Trump. Said Trusty of Jay Bratt, chief of the Justice Department’s counterintelligence and export control section of the National Security Division: “He apparently, along with five other people in his presence from DOJ, extorted a very well-respected, very intelligent lawyer from Washington, D.C. [Stanley Woodward], saying essentially, ‘If you want this judgeship that’s on Joe Biden’s desk, you have to flip your guy to cooperate against the president of the United States.’” Nauta is facing six charges, including conspiracy to obstruct justice, stemming from his alleged removal of at least 64 boxes from a storage room and lying to the FBI about his knowledge that the documents were at Mar-a-Lago.
A prosecutorial misconduct claim is unlikely to get Trump very far in court. The standard for proving prosecutorial misconduct is extremely high, with the Supreme Court stating that dismissal of an indictment is appropriate only “if it is established that the violation substantially influenced the grand jury’s decision to indict” or if there is “‘grave doubt’ that the decision to indict was free from the substantial influence of such violations.” In this case, according to Bill Barr, Trump’s former attorney general, in his appearance on Fox News this weekend, “the government acted responsibly. And it was Donald J. Trump who acted irresponsibly.” Jack Smith headed off this critique during his brief remarks on Friday: “The prosecutors in my office are among the most talented and experienced in the Department of Justice. They have investigated this case hewing to the highest ethical standards. And they will continue to do so as this case proceeds.”
The witch hunt “defense” might help raise money; it is unlikely to win in court.
2. The notes taken by Trump’s lawyers cannot be used against him.
One of many distinct features of the indictment is its reliance on notes taken by one of Trump’s lawyers, M. Evan Corcoran, in connection with the government’s attempts to secure return of the documents Trump took to Mar-a-Lago. Corcoran recorded notes on an iPhone and transcribed them on paper. According to the indictment, Corcoran quotes Trump as saying with respect to the subpoena for the documents, “What happens if we just don’t respond at all or don’t play ball with them?”
In the vast majority of cases, attorney-client privilege protects from disclosure any communications made between a client and a lawyer so long as they are confidential and done for the purpose of giving or receiving legal advice. The idea behind the privilege is that the justice system works best if people feel secure in asking candid questions of their lawyers and receiving honest answers. The comments made by Trump to his lawyer could be just that—questions about what it means to have to comply with a subpoena, and how much leeway he might have had to respond as minimally as possible.
Earlier this year, however, the government persuaded U.S. District Judge Beryl Howell, who sits in Washington, D.C., that the privilege should be pierced pursuant to what’s known as the “crime-fraud” exception, which applies to communications regarding the advancement or concealment of ongoing or future crimes. Trump’s lawyers could file a motion arguing that Judge Howell’s ruling was wrong and the exception did not apply. Even if Trump wins that motion, however, it would not mean the entire indictment would be thrown out—more likely, Corcoran’s notes and testimony could not be used at trial. And it seems from the indictment that Smith has plenty of other evidence with which to build a case before a jury.
3. Trump is immune from prosecution to the extent the indictment covers actions while Trump was president.
The indictment opens with the statement that Trump “held office from January 20, 2017, until January 20, 2021,” and “over the course of his presidency, TRUMP gathered . . . official documents, and other materials in cardboard boxes that he kept in the White House,” including information “regarding defense and weapons capabilities of . . . the United States,” and that he “caused scores of boxes” to be transported to Mar-a-Lago after he “ceased to be president.” The timeline thus includes actions Trump took while president.
Trump’s lawyers have already argued publicly that the Presidential Records Act (PRA) somehow authorized his taking of classified documents (wrong; it “establishes that Presidential records automatically transfer into the legal custody of the Archivist as soon as the President leaves office”), and that he was able as president to declassify documents in his mind (also wrong). Those are legal nothingburgers. Said Barr on Sunday: “I was shocked by the degree of sensitivity of these documents”—which included intelligence sources, information about the U.S. nuclear program, our vulnerabilities to military attacks and retaliation plans, as well as the weapons capabilities of the United States and other countries—“and how many there were, frankly.” The fact that what Trump took and hoarded involves the most sensitive information the nation holds makes the PRA arguments sound silly.
What Trump’s lawyers haven’t publicly pushed thus far, however, is a cousin of the argument Trump made—and lost—before the Supreme Court when it came to the Manhattan grand jury’s subpoena of his personal financial and tax records from his private accounting firm. Trump argued that under Article II of the Constitution and the Supremacy Clause, a sitting president enjoys absolute immunity from state criminal proceedings because compliance would categorically impair the performance of his duties. A majority of the Court in Trump v. Vance disagreed, with Chief Justice Roberts writing the opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. And a half-century earlier, in U.S. v. Nixon, the Court unanimously held that tapes of Oval Office conversations could not be concealed from a criminal prosecution based on executive privilege.
The Mar-a-Lago indictment raises an entirely different procedural context—it is not a subpoena for information that Trump would be attempting to block. Still, given the unprecedented nature of this criminal case, there may arguably be constitutional “gray areas” that could be explored in a motion challenging part of the indictment in some way, shape, or form, on the notion that whatever Trump did as president is untouchable. Here again, the arguments would likely lose, even with the reconfigured Supreme Court majority. But if there are motions to be made, it will take time to resolve them, and pushing back a trial date only helps Trump.
4. My staff did it.
Prior to the indictment’s unsealing, it was conceivable that Trump might have had a defense to the government’s case on the facts—in particular, on its burden of proving criminal intent. Trump is notorious for not committing things to writing and for throwing former loyalists and employees under the bus. In a case like this one, with over 150 employees at Mar-a-Lago during the time period covered by the indictment, and with Trump being a busy and important former-president guy, one might expect him to argue that he had no idea what his staff did before, during, and after moving day on January 20, 2021.
Given the facts alleged in the indictment—including a recording of him discussing a document about a possible attack on Iran to a group of people without security clearances—this defense is now too little, too late. But like spaghetti thrown against a wall, his lawyers could still give it a try.
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5. No harm, no foul.
Trump’s lawyers could try to build a “who cares?” theory of the case, which would attempt to persuade the jury that even if everything in the indictment is true, nothing really bad happened, so it would be unfair to convict. This kind of defense would play to what’s known as “jury nullification”—when a jury acquits regardless of whether they believe the defendant violated the law (O.J. Simpson’s criminal trial comes to mind). Regarding Bragg’s indictment of Trump on 34 counts of falsifying business records, there is a risk that a jury will find that the charges are relatively petty and not fit for punishing an ex-president.
In the Mar-a-Lago case, the indictment merely claims that “the unauthorized disclosure of these classified documents could put at risk the national security of the United States”—it does not affirmatively assert that Trump’s reckless handling of sensitive information did any harm. Whether this is a winning defense depends on what evidence the government is willing to put before the jury on this question, including classified material. But once again, it’s probably a loser. From the standpoint of sheer common sense, it seems like it would be a hard sell for anyone other than hardcore MAGA partisans, who presumably would not make it through the jury selection process anyway.
6. Whataboutism and selective prosecution.
Trump’s legal team could take a shot at bringing up the “whataboutism” defense that seems to come up incessantly in politics these days—that both former Vice President Mike Pence and President Joe Biden, both of whom are candidates for president in 2024, both had government records in their possession after leaving office. (Pence’s case was recently closed by the Justice Department.) The big difference between Trump and the others is the obstruction part—both Pence and Biden cooperated fully with the government once problems became apparent. Trump, despite ample opportunity, doubled down.
From the standpoint of an actual legal defense, the most closely analogous argument would be selective prosecution, a procedural argument that, if successful, would give Trump the right to examine the government’s work in other, similar prosecutions. Because prosecutors are afforded wide discretion to pick and choose their cases, the standard again is high. Under the Supreme Court’s decision in U.S. v. Armstrong, Trump would have to show that federal prosecutors acted with a discriminatory motive and a discriminatory effect, and that it did not charge similarly situated people of other races. This is not a winner.
ALL TOLD, THE BEST DEFENSE for Trump is probably delay, delay, delay. The case has been assigned to Judge Aileen Cannon, who penned the disastrous opinion granting him a special master to review the documents retrieved from Mar-a-Lago. Trump appointed her, and the Eleventh Circuit Court of Appeals roundly reversed her. Trump could file enough motions to enable Cannon to reasonably use her discretion to drag things out.
If the proceedings are still underway at the time of the Republican nominating convention next year, the political pressure to conclude the case will be intense.
If Trump wins the GOP nod and the case is still in court, it may become the central issue of the fall campaign, with ugly consequences for politics and the rule of law.
And if Trump were returned to the White House, all bets would be off—except you can be sure that his new attorney general would not be Bill Barr.
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