Could Trump’s delay-at-all-costs legal strategy actually work?
As though anyone needed to call out Donald Trump for trying to delay his criminal cases until after the election, Jack Smith just hung the bell on the cat in the Mar-a-Lago boxes case before Judge Aileen Cannon.
Judge Cannon had set the trial date in the case for May 20, 2024, although she recently said that she may make “reasonable adjustments” to the date, expressing concern that it may “collide” with other criminal cases confronting the defendant.
After all, Trump has a uniquely busy calendar — campaigning for president while he stands indicted in four jurisdictions, two federal and two state, with 91 serious violations of law.
Judge Tanya Chutkan in DC had set March 4 as the trial date for the January 6 election trial. The government estimated that trial will take four to six weeks. Knowing this, Trump moved to postpone the Florida trial until after the election, lest that case be on a collision course with the trial in Washington — without disclosing to the court that he was about to move to dismiss the DC case and ask for a stay of that trial pending decision.
Trump’s motion to dismiss the DC indictment was on the unprecedented ground that he had criminal immunity from prosecution for anything he did in office. He also cited three less substantial grounds for dismissal, and Judge Chutkan will have to deal with these as well. Special Counsel Smith was quick to spotlight this latest ploy, warning Judge Cannon in strong language not to be “manipulated in this fashion,” and stating that it confirms Trump’s “overriding interest in delaying both trials at any cost.”
Trump’s lawyers know they have little chance of dismissing the DC case, where Judge Chutkan has just signaled she is not kidding, and it’s “full steam ahead.” She has summoned to the courthouse on February 9 hundreds of District of Columbia residents, who are prospective jurors, to answer questionnaires. That is just over three months away. The wheels of justice turn slowly, but they turn inexorably. The law will hold Trump accountable.
As Trump’s lawyers readily conceded, no court has ever held that a president is immune from criminal responsibility for acts in office. No court has ever confronted the issue because no president (or former president) in history has ever been a defendant in a criminal case. There is little chance that any court would take Trump’s assertion of blanket immunity seriously. After all, to do so would be to declare that the president is above the law. The country was outraged when Nixon told David Frost, “Well, when the president does it … that means that it is not illegal.” Certainly, Judge Chutkan — who authored the now-famous line that “Presidents are not kings, and [Trump] is not President” — is unlikely to buy into his claim of blanket immunity from criminal prosecution.
Two cases involving criminal investigations would appear to favor the prosecution. In United States v. Nixon, the Supreme Court unanimously held that the president had to comply with a grand jury subpoena. And in Trump v. Vance, the Court held that Trump had no right to block the release of his tax and other financial records from a criminal investigation.
Even if the president does have executive immunity, the essential legal test is that the immunity protects him not for everything he did in office, but only conduct within the “outer perimeter” of his official responsibility.
The “outer perimeter” language appears in the 1982 decision of the Supreme Court in Nixon v. Fitzgerald, a civil action. Nixon fired Fitzgerald, an Air Force analyst, allegedly because Fitzgerald gave testimony to a congressional subcommittee about cost overruns that Nixon didn’t like. Fitzgerald sued for damages claiming unlawful termination.
The court ruled for Nixon in a 5-4 decision holding that the president had “absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.” Trump’s motion cites the Nixon v. Fitzgerald case 40 times in 52 pages.
Trump’s lawyers would probably agree that if he shot someone on Fifth Avenue, he would not be immune from prosecution. In a concurring opinion, Chief Justice Warren Burger stressed in Fitzgerald that “the immunity is limited to civil damages.”
Trump’s conduct on January 6 does not remotely pass the “outer perimeter” test. In the DC indictment, Trump is charged with hatching an overall plan to keep himself in office. The plan included the following:
Dishonest attempts to set aside valid state election results with false claims of voter fraud
Attempted subversion of the states’ selection of electors for president and vice president
Efforts to have the vice president unconstitutionally claim a power to refuse to count electoral votes certified and submitted by several states
Efforts of members of Congress to assert a power to reject votes lawfully cast by electors
Fomenting and immediate incitement of a mob to attempt to forcibly prevent Congress’s and the vice president’s counting of such lawfully cast votes — all in an attempt to prevent the defeated candidate from losing power in accordance with the Constitution
And then, the icing on the cake, watching the plan unfold on TV for almost four hours before calling upon his followers to stand down and go home where he had a constitutional duty to act sooner to stop the violence. This is not the stuff we elect presidents to do. We elect presidents — as made clear in Article Two, Section Three of the Constitution — to “take care that the laws be faithfully executed.”
Most lawyers would agree that Trump is likely to lose this battle. But he is not interested in winning battles — he is interested in winning the war, with the ultimate weapon being delay.
In the likely event that Judge Chutkan denies his motion to dismiss, he will doubtless appeal to the DC Circuit. Even though it is the fourth quarter, the DC Circuit could affirm the lower court or dismiss the appeal in time for the March 4 trial.
But then there is the Supreme Court. If four justices decide they are interested in the issue, the Supreme Court can take the case even if Trump is ultimately unsuccessful on the merits. All this judicial dithering may take the trial date beyond the election.
If that happens, Trump will have captured the Holy Grail, and successfully run out the clock. Justice delayed is justice denied. The DC case may still not get to trial until after the election.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the acclaimed public television talk show and podcast Conversations with Jim Zirin.