Former President Donald Trump’s arraignment on Tuesday represents the beginning of what we hope will be a speedy criminal trial relating to his indictment on multiple charges by Jack Smith. But the notion that Trump might try to delay litigation to avoid responsibility and accountability should come as no surprise. It’s his modus operandi. It’s how he wins when his case is a loser. And for far too long over too many years, courts seemed willing to let him get away with it.
The notion that Trump might try to delay litigation to avoid responsibility and accountability should come as no surprise.
When prosecutors in Manhattan subpoenaed Trump’s accountants for his tax returns in 2019, he sued them in federal court to avoid turning over the documents. He was able to delay that investigation for months while the case made its way to the Supreme Court. He lost that challenge, and then lost a second time when Congress, too, gained access to his returns after years of litigation. Delay is Trump’s strategy for winning when he’s holding a losing hand. He came close to running out the clock on both the Manhattan district attorney and Congress, between statutes of limitations and the end of the congressional session. Delay a strategy that can and has worked for him.
But more recently, the courts seem to be catching on. That may lead to a brush with reality for the former president as he faces a federal indictment in Florida. When Trump tried to reopen discovery in the E. Jean Carroll civil defamation case just weeks before it was set for trial, Judge Lewis Kaplan put his foot down and tried the case on schedule. Similarly, the 11th Circuit Court of Appeals stepped in to prevent Trump’s attempts to delay Jack Smith’s investigation following the execution of the Mar-a-Lago search warrant last year.
That delay only ended when the 11th Circuit told Trump appointee Judge Aileen Cannon in a sharply worded, highly critical decision that she lacked jurisdiction over the matter and had gotten the substance of the decision wrong. Trump delayed matters for months, but it could have been much worse if the court of appeals had not acted so promptly.
Increasingly, the judiciary seems to be on to Trump. That’s bad news for his lawyers.
Increasingly, the judiciary seems to be on to Trump. That’s bad news for his lawyers as they prepare for his arraignment. Tuesday will be Trump’s introduction to the federal criminal justice system. He will be called upon to enter a plea in court. The issue of pretrial detention will be resolved, and while the former president is likely to be released, he will have to arrange for a bond if one is ordered and obey any conditions of release the judge sets. And then matters will proceed, as they do in a normal criminal case. Trump is entitled to due process. He is innocent unless and until proven guilty by a jury of his peers. He will have the same opportunity to defend himself against the charges that any other criminal defendant has. But he will not get anything extra.
And he will not be able to use frivolous tactics to delay, at least not if the trial judge is wise to Trump’s history. That’s the one potential monkey wrench in the process here. The case is now assigned, again, to Judge Cannon, who previously gave Trump such extraordinarily favorable treatment. There are concerns she will do that again, dooming the prosecution. Federal judges have enormous power over cases in front of them.
Nothing would serve the interests of justice more poorly than having a judge whose fairness toward Trump has already been seriously called into question handle this case. The standard for recusal in the 11th Circuit is squishy — judges should step aside when a reasonable person would have doubts about their impartiality. If Judge Cannon does not recuse herself, and permits Trump to engage in meritless delays of the proceedings, it would be a miscarriage of justice. The American people deserve a speedy trial too, especially with a looming election.
Cannon is too new on the bench for lawyers who practice in Miami to much sense of whether she consistently adheres to “rocket docket” scheduling, like many other judges in the district do. Rocket docket, a term that originated in the Eastern District of Virginia in the late 1970’s, has come to describe federal courts in which the judges require parties to adhere strictly to filing deadlines. It is in every way the antithesis of Trump’s approach to litigation.
In a criminal case, this means judges set trial dates consistent with the 70 days called for by the Speedy Trial Act, which provides that “the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” Cases with complexities take longer and judges expect to continue the trial date, but not unduly. There are anticipated delays, for instance, while pretrial motions are under consideration. But rocket docket judges tend to rule promptly.
In a case like this one, there will be inevitable delays beyond the Speedy Trial Act period. For instance, since some of the evidence is classified, a process will need to be worked out for discovery and the use of evidence at trial. That’s complicated and takes time. Trump, like all defendants, is entitled to file pretrial motions, and it’s likely we’ll see a flurry of them here, including previously hinted at allegations of prosecutorial misconduct. These motions should be promptly considered and acted upon. They should not become a vehicle to delay trial by months. These motions should be promptly considered and acted upon. They should not become a vehicle to delay trial by months, even years. The charges and evidence, while voluminous — the government told the court it would need three weeks to try its case — are straightforward. Many of the issues Trump may try to litigate in advance, like those related to executive privilege, have already been under consideration by the courts. Some issues may head to the 11th Circuit for resolution. That court has already considered the former president’s delay tactics twice. And rejected them. Because that’s not how our legal system works. As a result, Trump may have already damaged his credibility with the judges who will now handle the first level of any appeals stemming from his case. That should mean Trump is unlikely to get away with the sort of borderline-frivolous moves that he has often attempted. He will have to make legitimate legal arguments. To the extent that he does not have them, he will be out of luck. There will be no more bending the rules that others have to play by in the legal system for Donald Trump. He will not be in control of this process. For the time being, former president or not, he is just another criminal defendant.
