As the Houdini of white-collar lawlessness, Donald Trump spent five decades “gaming the system.” He used rules and procedures meant to protect both the due process rights of all the people and our legal system to, instead, manipulate the system for the benefit of himself in more than 3,500 lawsuits.
And that was before he became president.
When it comes to exploiting, rigging, abusing, cheating, playing, working, breaking, bending, or stretching the rules of our system with a specialization in “legal delay,” there is no other individual or attorney dead or alive in the United States with as much experience and expertise than Trump — the “plaintiff-in-chief,” as dubbed by legal scholar and leading litigator James D. Zin.
Trump’s record speaks for itself. He wins or draws about 70 percent of the time whether he is the plaintiff or the defendant. And that was without the power of the presidency and before he carried around the Republican Party in his hip pocket. It was also back in those days when he was working the legal system from outside rather than inside, and when he was still shopping around for — rather than appointing — judges.
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Flash to the present moment. Trump is now a former president and presumptive nominee for the 2024 Republican presidential nomination. He also faces four separate felony criminal trials involving matters ranging from falsifying business records to illegally retaining classified documents to attempting to overturn a free and fair presidential election.
So let’s review the ways in which Trump’s litigating skills and acquired political power have been gaming the system in various courts of law, with an emphasis on the Mar-a-Lago classified documents case and the person who is presiding over that trial, Judge Aileen Cannon.
A Trump nominee, Cannon might very well be the poster judge for Trumpian corruption and ineptitude.
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While Trump’s lawyers have largely failed to effectively defend Trump in separate civil cases he’s facing — including the E. Jean Carroll sexual abuse and defamation cases, as well as the New York business fraud cases — Trump and his lawyers have proven quite effective in delaying the due process of justice across his criminal cases, which not only pose a threat to his wealth, but to his freedom.
For example, just as we all thought that the Manhattan criminal trial where Trump faces 34 felony counts for falsifying business records connected to “hush money” payments was set to begin on March 25, we learned late Thursday afternoon that District Attorney Alvin Bragg is proposing “a 30-day delay in response to Trump’s request for a 90-day delay to allow his lawyers time to review a new batch of records.”
The reasons are complicated, so I won’t bother to explain except to say the blame for this delay apparently goes to the U.S. Southern District of New York and a brilliantly timed motion by Trump’s team. As a result, it means that the first criminal conviction of Trump by a jury of his peers will not probably occur before the 4th of July — rather than sometime in May.
Meanwhile in Georgia, matters are even messier.
On Wednesday, Superior Court Judge Scott McAfee quashed six of the 13 counts against Trump and his 18 alleged co-conspirators, reducing the former president’s felony charges from 41 to 38, leaving in place the rest of the racketeering indictments.
And early Friday morning, McAfee ruled because of the “appearance of impropriety” that traditionally has been a standard for judges and not for prosecutors which is typically about a conflict of interest, the racketeering case can continue if either Fani Willis or special prosecutor Nathan Wade steps aside. (Wade officially resigned on Friday.)
Seems like a new standard of disqualification for prosecutors has been adopted in Georgia by the judge. However, in the context of the testimonies it seems fair and reasonable. Though technically appealable, this will not happen. Wade will now disappear and Willis will try to find a new special prosecutor so the case against Trump and his minions can move forward.
Now then, concurrent with Cannon’s rulings in the classified documents and obstruction of justice case in Florida, there was a recent case — unrelated to Trump’s proceedings — where Cannon made serious legal errors, “including one that potentially violated the defendant’s constitutional rights and could have invalidated the proceedings,” according to legal experts and court transcripts.
Corrupt or incompetent, and probably both, Cannon has needlessly delayed justice where Trump and his two co-conspirators should have already been convicted and sentenced to prison. Consider that their initial indictments were more than nine months ago.
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After all, the classified documents case is a no-brainer, a slam dunk, nothing complicated about either the facts or the law despite a plethora of motions from Trump’s lawyers — some of which were heard on Thursday at a hearing before Cannon. Trump’s team claimed that the case should be thrown out for such frivolous reasons that she should not have even entertained oral arguments in the first place.
After Cannon decided to appoint a special master in September 2022, I argued in “Why the Mar-a-Lago ‘special master’ decision is so dreadful,” that to hold the former president to a higher bar for indictment or prosecution “only serves to reinforce the existing biases of our justice system, favoring the powerful at the expense of most everybody else.”
As Duke law professor Sam Buell tweeted at the same time, the ex-president “is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is persecuted, when he is being privileged.”
I also quoted New York University law professor Andrew Weissmann, who as an assistant U.S. attorney from 1991 to 2002, has prosecuted high-profile organized criminals. He similarly tweeted: “In none of the rare Special Master appointment cases – of attorneys like [Michael] Cohen and [Rudi] Giuliani -- did the court ENJOIN the criminal investigation” like Cannon did in the documents case?
No, they did not.
Cannon’s “malfeasance” in the Mar-a-Lago investigation case was revealed on Dec. 1, 2022, when a unanimous per curiam decision by the 11th Circuit vacated her order to appoint a special master, who was slated to oversee the review of the classified documents seized from his residence on August 8, 2022.
It’s possible Special Counsel Jack Smith may soon be headed to the court of appeals because he has sought reconsideration for what he calls a “clear error” and “manifest injustice” where Cannon had “decided to unseal the identities of two dozen potential witnesses, along with sensitive information they provided to the government.”
Smith’s reconsideration motion also argued that Cannon “minimizes the risk of real-world harm and witness intimidation these individuals would face.”
In fact, this danger is so real that Brian Butler, a 20-year employee at Mar-a-Lago, in order to get out in front of the news, gave an exclusive insider’s interview to CNN on Monday about some of his anticipated testimony and his concerns for his fellow employees who have also been indicted along with their Boss.
Among other statements, Butler maintains that these indictments have nothing to do with “witch hunts” — the term Trump uses for most any legal or governmental action for which he’s the target. Trump, Butler said, is not to be trusted and that the country would be better off if it could free itself from Trump.
According to several legal analysts interviewed by Salon, Butler presented himself as an “ideal” and “credible” witness with “essential evidence” including details of his “unknowing involvement with the movement of classified documents” as well as his “close-knit friendship” with Carlos DeOliveira, one of the two other Trump employees who plead not guilty.
On Thursday morning, before Cannon was to hear from Trump’s lawyers on the motions to dismiss the entire prosecution based on the Presidential Records Act (PRA) and “unconstitutional vagueness,” MSNBC legal analyst Lisa Rubin had this to say on “Morning Joe”: The PRA “doesn’t support the interpretation and almost the perversion that Donald Trump is trying to give to it.”
And late Wednesday evening, Joyce Vance, the distinguished law professor and former head of the U.S. attorney’s office for the Southern District of Alabama, had this to say in her Civil Discourse Substack: “If this was any other judge, I’d be telling you there was a 105% chance these motions would be dismissed. But with Judge Cannon, we just have to wait and see how she rules.”
Associated Press reporters, who were at the hearings in Florida, wrote that Cannon “appears skeptical of Trump’s bid to dismiss his classified document prosecution.”
Judge Aileen Cannon and Special Counsel Jack Smith
Aileen Cannon (Source: U.S. Senate Committee on the Judiciary)
It turns out they were correct. In a two-page order, Cannon “rebuffed argument by Mr. Trump’s lawyers that the central statute in the indictment, the Espionage Act, was impermissibly vague and should be struck down entirely.”
Although the judge has still not set a trial date, she indicated that some of Trump’s arguments might be more appropriately received by a jury, hinting that there very well may be a trial someday.
Even though Cannon ruled against the motion to throw out the case as most legal experts thought she should, the hearing of oral argument on the matter still served Trump well in further delaying a trial that most likely will not occur before the end of summer.
Perhaps most ominously, Cannon’s ruling without prejudice means that it can be raised again during jury instructions which means that the case against Trump, even the obstruction of justice, could then be dismissed altogether and not appealable by the state because of the double jeopardy clause.
During the past couple of months while at campaign rallies and events, Trump’s dementia seems to be growing worse with every speech he makes. Nevertheless, the plaintiff-in-chief still seems to be at the top of his illegal gamesmanship.
Gregg Barak is an emeritus professor of criminology and criminal justice and the author of several books on the crimes of the powerful, including Criminology on Trump (2022) and its sequel, Indicting the 45th President: Boss Trump, the GOP, and What We Can Do About the Threat to American Democracy, to be published April 1.
