There will be a week when Donald Trump’s legal troubles won’t be in the news. This wasn’t the week. Not only is the Department of Justice all but laughing hysterically at Trump’s latest legal maneuver to delay his upcoming trial indefinitely, but Hunter Biden’s legal team has sent the former president a cease and desist letter telling him to quit saying things that might hurt little Hunter’s feelings. (Okay, they also claim Trump’s rhetoric might cause Hunter or his family–and I wonder if that includes the child he does his best to ignore–harm.) I wish I was making all this up but, nope, it’s happening before our eyes–if we dare look.

As for Trump’s latest legal maneuver, his attorneys filed a motion to delay the trial earlier this week. According to his attorneys, the case is of an extraordinary nature, finding a jury during the presidential campaign would be next to impossible, the sheer number of documents to review, and more–including the possibility (they say probability) that their upcoming motions might be granted. These motions are expected to include a motion to dismiss.

Yesterday, prosecutors filed an 11-page response to the Trump team’s motion. Special counsel Jack Smith and the other attorneys on the team point-by-point do their best not only to refute but to totally destroy Trump’s motion. Let’s just say they make some good points and Trump’s will be hard pressed to win the motion even with Trump-appointee, Judge Aileen Cannon, hearing it.

Here are the high (or low) points from the prosecution’s brief:

The extraordinary nature of the case:

There are two basic issues involved here. The first deals with the appointment of the special prosecutor, the Presidential Records Act, and the criminal charges that have been brought against Trump. Those concerns, according to Smith and his team, are easily dealt with. United States v Nixon “ruled that Congress gave the Attorney General the power to appoint special counsels”. In re Grand Jury “held that a special counsel appointed by the Attorney General has the authority to investigate and prosecute federal crimes.” Assuming Judge Cannon agrees those cases are probative, this particular argument will probably be tossed.

On to the next.

Discovery Does Not Warrant a Continuance:

On the surface, this one might make the judge pause and consider granting the defense’s request. After all, we’ve all seen the images of box after box after box of documents being hauled out of Mar-a-Lago. However, according to the DoJ, the volume of documents doesn’t preclude Trump and his attorneys from being able to formulate a defense if they put their minds to it.

Although the Government’s production included over 800,000 pages, the set of “key” documents was only about 4,500 pages. The Government similarly identified to the Defendants a small subset of “key” CCTV footage referenced in the Indictment or otherwise pertinent to the case. . . Defendants’ alleged inability to use contract personnel to assist in unclassified document review is puzzling. They claim the reason is that “all the discovery materials are sensitive and high-profile,” (Resp. at 5) but discovery materials are sensitive in any criminal case, and courts routinely enter protective orders covering defense document reviewers. Magistrate Judge Reinhart entered such an Order here, with no opposition from the Defendants. ECF No. 27. The Order specifically authorizes disclosure to “persons employed to assist in the defense,” id. at 2, and Defendants offer no explanation of why they could not engage such personnel here.

I’ll admit, the number of pages turned over is daunting. But the response brief makes a very good point about using contracted personnel to review the documents is valid. Lawyers for years have hired additional assistance and experts to review documents and prepare trail tactics based on what the documents say–or don’t say. I think the defense is trying to claim on one hand that all these documents would need someone with clearance to review them while, at the same time, arguing the fact the defense team hasn’t received security clearance means they can’t review the documents and build a valid defense. More on this below.

Classified Information Procedures Do Not Justify a Continuance:

As promised, here’s the security clearance argument. Trump’s team claims they haven’t received the clearance necessary to review the classified documents yet. They also claim the process to secure clearance is “inherently complex”. Smith’s response is basically that they were ready to hand over the first round of classified discovery on July 10th and the problem rested solely on Trump’s team. At that time, the hand-off was contingent on the defense team “having obtained interim clearances”. To do so, they needed to “submit their Form SF-86 and supporting documentation to the Litigation Security Group.” According to the response, only two members of the defense team had done so as of July 13th. It further notes that the Court set yesterday as the deadline for the defense to file.

There are additional arguments Smith’s team puts forth under this concern but, to be honest, they all boil down to the fact Trump’s team has not fulfilled the first basic requirement necessary to gain access to the classified documents. Their failure should not be cause, in and of itself, to delay the trial, much less to do so indefinitely. The precedent of allowing them to do so and get away with it–without extenuating circumstances being proven to explain why they didn’t follow the court order–would have a chilling effect on the criminal justice system. How many defendants or their attorneys would use this as a tactic to delay trials time and time again?

Impossibility of finding a jury during the presidential campaign:

Okay, this one is the one that really has me scratching my head. The prosecution admits in its response that additional protocols might be needed to seat a jury. But that’s nothing new. Every high profile case has to consider this possibility and deal with it. Further, as the DoJ’s brief points out, there is nothing in the defense’s motion to indicate there would be an “appreciabl[e] change after the completion of the election.”

In other words, the same potentially contaminated jury pool will still be contaminated. Heck, after an election season, it might be more so.

But here’s the real kicker:

The Defendants also contend that counsel’s trial schedules “make it nearly impossible to
prepare for this trial by December 2023.” Resp. at 10. But nothing about defense counsel’s trial schedules justifies the extraordinary continuance they seek. And in any event, “[it] takes more than counsel’s claim of a crowded schedule to carry [the] burden” of justifying a continuance, since a court’s schedule “should not be subordinated to the schedules of the lawyers that appear before it.”

In other words, the attorneys on the defense team–as well as their clients–are busy. So delay the trial until we say you can schedule it. No, we aren’t going to give any alternate dates. We want to control the court’s schedule.

So the question becomes why?

Why does the defense want this open-ended delay?

According to CNN analyst Maggie Haberman, it is so the case against the former president can “go away”. MSNBC, falling into the conspiracy muck it so often loves to roll around in, puts forth another several reasons why:

What the Trump team isn’t saying is that if Trump wins next year and then uses the levers of government at his disposal, he could push to absolve himself of any and all accountability. Maybe he pardons himself. Maybe the 25th Amendment is invoked and the vice president takes over and pardons him. Maybe Trump relies on a corrupt attorney general to scuttle the Justice Department’s own case against him.

As unlikely as those possibilities might seem, step back and take a long look at them. Haven’t we already seen the Biden Administration attempt to manipulate the AG to not only avoid but scuttle any investigation into Hunter and his activities? Hasn’t that same administration pushed to absolve Hunter and others of accountability? We’ve seen it in other administrations as well. Whether Trump would do so or not, we don’t know. But it is something a lot of folks will consider.

But here’s the factor I keep coming back to. If the case is delayed until after the election and if Trump wins and is then convicted while still sitting in the Oval Office, he can be removed if that conviction is for a “high crimes and misdemeanors” as set forth in the Constitution. If that happens, we will be stuck with the VP taking over the Oval Office. Then we get a new VP, someone we did not elect. Someone who will take over as president if anything happens to the VP-now president.

Still, Trump does get to smile a little where Hunter’s concerned and we might as well. According to Hunter’s attorneys, Trump is a bad man, speaking falsehoods against poor little Hunter. These statements “could lead to [Hunter Biden’s] or his family’s injury.” According to Townhall, “The letter boils down to some snowflake lawyer trying to make ‘words are violence’ an actual thing. And to cite January 6 to prop up the argument that Trump’s Truth Social posts could injure Biden’s family stretches the limits of sanity.”

In this matter, I agree with Townhall.

In the motion to delay the trial, I find myself agreeing more with the DoJ than I want to and it pains me to say so. Like Trump or not, you have to look at the totality of the situation, the precedents that will be set and their impact on the criminal justice system.

Featured image: Donald Trump by DonkeyHotey. Creative Commons 2.0 license.