Former President Donald Trump learned the value of delay from the infamous attorney Roy Cohn—who had been Sen. Joseph McCarthy’s chief lawyer during the witch-hunt for communists conducted in the 1950s. In Trump’s case, Cohn delayed a civil rights lawsuit against Trump and his father, Fred Trump, for two years before the case settled.
But even Trump can’t compete with a true master of criminal defense delay like the Bronx-based criminal defense attorney Douglas Rankin, whose legendary delay tactics were highlighted by The New York Times. Notably, Rankin’s delay tactics included being perpetually late to court—his excuses ranging from a lost EZ-Pass to traffic delays.
As most of us know when we are late, every little delay from lost keys to red lights adds up. For criminal defense lawyers, delay is nearly always their friend. Memories fade with time, evidence grows stale and—in Trump’s case—elections happen.
The court filing late Monday night by Trump and his co-defendant Walt Nauta’s lawyers demonstrate they are well aware of this basic principle of criminal law.
Trump and Nauta lawyers go big in their request, asking that the judge not only delay the December trial date sought by special counsel Jack Smith—but simply hold off on even setting any trial date.
Their reasons start with the assertion that the case requires “a measured consideration and timeline that allows for careful and complete review of the procedures that led to this indictment.” In other words, the defense lawyers want to investigate the investigation before they ever have to go to trial. (Even special counsel John Durham’s meritless investigation of the Russia probe at least took place after the investigations and prosecutions that it spawned were completed.)
Given that the case is in front of the Trump-appointed Judge Aileen Cannon, the ask from Trump’s lawyers may not be as far-fetched as one thinks. Recall that Judge Cannon is the same judge who delayed and bogged down the Mar-a-Lago investigation by seeking to appoint a special master to essentially oversee the entire criminal investigation. The Eleventh Circuit Court of Appeals ultimately reversed Cannon’s legally unsound decision, but by then the damage done by the delay was already done.
Trump and Nauta’s attorneys claim that jury selection during a presidential campaign would be impossible to accomplish, presumably because jurors would be caught up in political support for the candidates and, therefore, incapable of being impartial.
This argument is meritless because such concerns over partisanship is why trial jurors are questioned through voir dire, often employing jury questionnaires and jury consultants, all overseen by a judge to screen out biased jurors. More obviously, there is also no reason to think that the problems of partisanship would be any lessened after the presidential election.
Of course, the real impact to the election is that, if Trump were to win, he could simply have his Justice Department dismiss the case or even seek to pardon himself.
The one actual legitimate point the defense teams make is that any trial involving classified documents can be slowed down both by the need for members of the defense team to seek and obtain security clearances, as well as the procedures for handling the potential disclosure of classified and sensitive documents set forth under the Classified Information Procedures Act (“CIPA”).
Obtaining the necessary security clearances can take weeks or even months. Walt Nauta’s lawyer, Stan Woodward, is adding to this potential delay by still not completing the form necessary for obtaining the security clearance—nearly a month after the indictment.
The sensitivities of such information results in the phenomenon known as “graymail,” where DOJ can be reluctant to have to try cases for fear of disclosing national security information. The Trump and Nauta team are no doubt fully aware of this, as they have also written that in a case involving a presidential candidate there should be “no secrecy”—but generously offer to delay the fight over what documents can be revealed publicly to a later date.
Taking a page from Bronx lawyer Douglas Rankin’s book, Woodward also asked to postpone Nauta’s appearance because Woodward had a scheduling conflict with a bench trial in Washington, D.C. The special counsel’s team responded that there was no reason why Nauta’s Florida lawyer could not handle the appearance.
Nauta claims that his Florida attorney, Sasha Dadan, was only recently hired and, thus, is not able to handle the hearing. While that may sound reasonable, it has to be considered in light of the fact that Nauta had been supposedly unable to find a lawyer since June 27—a difficult to believe proposition since paying the fees probably were not much of an issue for him, given that fees likely would be paid by a political action committee (PAC). It’s worth noting that Nauta postponed one arraignment date due to a flight cancellation. Flight cancellations—like traffic delays—can come in handy when every bit of delay helps.
The problem for special counsel Jack Smith and DOJ is that, even under the best of circumstances, a complex case like this would be nearly impossible to get to trial by their suggested date of December. Nor will they have much leverage over any timing decisions by Judge Cannon (whatever her motivations may be), because such decisions as scheduling are unlikely to involve legal issues that can be appealed.
Worse, for good reasons, trial judges are hesitant to pressure defendants into trial for fear that such pressure may create an appellate issue in the event of a conviction.
The Trump and Nauta defense lawyers don’t need any brilliant or innovative legal strategies to slow down and delay the documents case trial. Standard tactics of delay will work just fine to postpone the case into the presidential election red zone. The only counter to this expected tactic would have been for Merrick Garland's DOJ to have gotten off to a much earlier start.