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The Memo: Trump delaying tactic on trial could scramble 2024 race

by Niall Stanage - 07/12/23 5:30 AM ET

The decision by former President Trump’s legal team to seek a long delay of his trial in the Mar-a-Lago documents case is injecting fresh volatility into the 2024 presidential race.

The filing from Trump’s lawyers, which came less than an hour before a Monday night deadline, seeks an indefinite postponement of the trial, which had been scheduled for December.

If their demand were acceded to by the judge in the case, it would open the door to several explosive scenarios.

One is the trial taking place in the heat of GOP primary season. Another is the proceedings occurring after Trump plausibly becomes the Republican nominee for president. A third is the trial being pushed past the date — Jan. 20, 2025 — on which Trump could become president again.

“There is most assuredly no reason for any expedited trial, and the ends of justice are best served by a continuance,” Trump lawyers Christopher Kise and Todd Blanche wrote in the filing, in which they were joined by lawyers for the former president’s co-defendant, Walt Nauta.

Former President Donald Trump speaks during a rally, Friday, July 7, 2023, in Council Bluffs, Iowa. (AP Photo/Charlie Riedel)

A situation in which no trial at all takes place before the 2024 general election is the one that most worries independent legal experts, as well as Trump critics.

Even legal minds who have no fondness for the former president acknowledge a sitting president could order the Department of Justice to discontinue a case — even if it’s a case where that president is himself indicted.

Harry Litman, a former U.S. attorney and deputy assistant attorney general, said the debate about whether a president can pardon himself could end up being moot.

“It’s controversial whether a president can pardon himself. But it is uncontroversial that a president can order the Department of Justice to stand down or cease to pursue a pending prosecution that hasn’t become final,” Litman told this column.

Litman noted this kind of situation could unfold even if the trial takes place before the 2024 election.

More coverage of the classified document case from The Hill:

Even if Trump were convicted, he noted, the former president would be almost certain to appeal. Trump, if he went on to become president, could then order the prosecutors in his own Justice Department not to contest the appeal.

If events actually played out in that way, it would cause a colossal political explosion. But Trump has detonated norms and incited controversy throughout his career, in the process defying numerous predictions of political doom.

“He has shown the ability to move through these moments, and they don’t seem to affect him with the Republican Party,” said Julian Zelizer, a professor of history and public affairs at Princeton University.

Zelizer added that, despite his innumerable past controversies including the Capitol riot of Jan. 6, 2021, Trump remains “the main voice in the party.”

When it comes to new legal developments, including a trial or even a conviction, Zelizer contended, “At this point, he has created a narrative about himself that is capable of absorbing each new piece of legal news, ‘They are just coming after me, and coming after you, my supporters.’ He has set it up.”

Trump’s legal team contends there are very real issues at stake in the timing of the trial.

Their filing refers to the volume of material assembled by investigators, the legal debates still to come about classification procedures, the challenges for Trump in defending a case while a candidate for the presidency, and how “careful consideration will need to be given to the ability to seat an impartial jury under the current circumstances.”

Specifically, they are clearly laying the groundwork to postpone the trial beyond the date of the next presidential election.

“There is simply no question any trial of this action during the pendency of a Presidential election will impact both the outcome of that election and, importantly, the ability of the Defendants to obtain a fair trial,” they write.

“The bottom line is, it’s a very transparent effort to delay, delay, delay,” said Michael Zeldin, a former federal prosecutor and well-known legal analyst.

For now, much hinges on whether the judge, Aileen Cannon, will accede to the Trump team’s demands. Cannon is a Trump appointee whose decisions at an earlier point of the Mar-a-Lago investigation stoked controversy because they were seen by some as overly sympathetic to the former president.

“He asked for an indefinite continuance which is stunning in its temerity, and hopefully Cannon won’t abide it,” Zeldin said.

Scenarios in which a Trump trial takes place amid the GOP primaries or after he potentially becomes the nominee open up their own cans of worms.

The political impact of a trial during the primaries is tough to predict. A conviction would surely unnerve some voters but, on the other hand, Republicans have rallied around Trump when he has suffered previous legal setbacks.

The former president’s lead over second-place Florida Gov. Ron DeSantis in national polling averages is wider now than it was just before the first criminal indictment against him was unveiled in early April by Manhattan District Attorney Alvin Bragg, for example.

A trial and possible conviction in the wake of Trump becoming the GOP nominee would perhaps be even more explosive, throwing the fall election campaign into unparalleled levels of chaos.

One way or another, Team Trump’s hopes for delay have a reasonable chance of being fulfilled. And, if that happens, all bets are off.

The Memo is a reported column by Niall Stanage.

Tags classified documents Donald Trump Donald Trump FBI Justice Department Mar-a-Lago