Trump Is Working To Put The Lawfare Strategy Out Of Reach

It quietly got into the news yesterday that, although Judge McAfee had spoken vaguely last Friday about having closing arguments in the evidentiary hearing on DA Willis's disqualification possibly today, this has been postponed:

Fulton County District Attorney Fani Willis’ office has confirmed no closing summations will be held this week in her disqualification hearing regarding her historic prosecution of the nation’s 45th president.

Fulton County Superior Court Judge Scott McAfee is currently deciding whether Willis and her special prosecutor, Nathan Wade, should be disqualified from further participating in their indictment of former President Donald Trump.

While many observers would like to see Willis get her comeuppance, the best we can say is this will take a while. In the video just above, Jordan Sekulow of the American Center for Law & Justice says, starting at 2:14,

[Judge McAfee]'s going to admit closing arguments. This is not normal. Something that we definitely thought would be done by this week is now going to go into a full third week. . . . Is it unprecedented to go into Week 3?

His interlocutor, a former federal prosecutor whose name I couldn't decipher, answers,

I think it is, when you're talking about a disqualification of a prosecutor from pursuing their duties, to criminally prosecute crimes in Fulton County or anywhere, you would think that something like this would be decided rather quickly. You put up your evidence, and within hours, the other side puts up their evidence as to why the DA should stay in the case, and the judge usually makes a ruling, either from the bench or within a day or two. But this has just strung on and on, and it's because Trump is involved, and it changes the complexion of everything.

He continues at 13:45:

The longer he takes, the more I think that shows that he's gonna disqualify her, because he's really gonna have to justify in a lengthy legal written opinion as to why -- and then of course, Jordan, each side is going to be entitled to ask the judge for a certificate of immediate review. . . . The losing side can say, "Judge, let this thing be decided by the court of appeals. . . . The judge doesn't have to give a certificate of immediate review, but Judge McAfee is going to be happy to get it out of his court.

He concludes at 14:45:

I don't think the case is going to be tried this year, because if the court of appeals were to decide to take the case, then they would have another briefing schedule, then they would have the possibility of oral argument before a three-judge panel of the Georgia Court of Appeals, and it would go on and on and on, and you know what, Jordan, in addition, the losing side could seek certiorari to the Georgia State Supreme Court. . . . So the idea of the defense, and I think they're doing it brilliantly, is to drag it out. Drag it out forever.

But this is just the Fulton County RICO case. Trump has already taken a presidential immunity claim in the January 6 case with Judge Chutkan to the US Supreme Court, and he's now going to raise it in the classified documents case as well:

Donald Trump’s attorneys said late Thursday that the former president should never have been charged in Florida with illegally retaining classified materials because he designated them as personal documents before leaving office — and thus should be shielded from prosecution by presidential immunity.

It is the second time Trump has tried to avoid a federal criminal trial with the sweeping argument that he cannot be prosecuted for actions that occurred while he was president. A judge and an appeals court panel have rejected that claim in his Washington, D.C., trial for allegedly obstructing the 2020 election results, but Trump has asked the Supreme Court to intervene.

The Supreme Court’s decision could settle the question of presidential immunity in both the D.C. and Florida cases.

The immunity court filing Thursday night was one of least a half dozen requests by Trump’s attorneys in Florida to toss out the 40-count indictment, which accuses Trump of mishandling classified papers after he left office and obstructing government efforts to retrieve them. Trump has pleaded not guilty.

However, Trump has also moved that Jack Smith was improperly appointed as special prosecutor:

Former President Donald Trump has argued that Special Counsel Jack Smith was improperly appointed to the position while trying to dismiss the classified documents case.

Trump's lawyers filed a series of motions on Thursday attempting to throw out the federal case. The former president has pleaded not guilty to 40 charges over allegations he illegally retained classified materials after he left office in January 2021, then obstructed the federal attempt to retrieve them.

. . . One of the filings also argued that Attorney General Merrick Garland's appointment of Smith in November 2022 was unlawful as it was not first approved by the Senate. This is required by the Appointments Clause and the Appropriations Clause; a previous argument had raised the "serious problem," the filing added.

These filings increase the likelihood that neither federal case against Trump can come to trial before the election, now less than nine months away. But a felony conviction for Trump before the election has been a keynote both of the White House lawfare strategy, and increasingly a last-ditch justification for Nikki Haley's campaign:

Nikki Haley’s recent comments suggest that she sees a sweet spot for her campaign as former President Donald Trump’s legal drama intensifies – and potentially results in a criminal conviction – in the coming months.

. . . While Haley predicts that support for Trump will drop off in the coming months as he spends more time in the courtroom, she has also made the case that voters will not support Trump if he is criminally convicted.

“There is no way that the American people are going to vote for a convicted criminal. They’re not,” Haley said last week in an interview with NBC News. Trump has pleaded not guilty in all the cases against him.

Haley has long said that Trump would not be able to focus on a general election or beat President Joe Biden in large part because he is going to be spending so much time in court. Now she is also making the case that support for him could wane even before the GOP convention.

The problem is that Trump's counter strategy will simply be to delay the proceedings for a mere matter of months, which also covers the US Supreme Court's summer recess from late June/early July until the first Monday in October, which subtracts another three months from the schedule. Trump's current motions hope to get the court to take his appeals, but simply waiting for the court to decide whether or not to hear them is a problem for the prosecution, which has repeatedly claimed that it's urgent that they go to trial before the election.

It's puzzling that nobdy in the White House seems to have anticipated that Trump's attorneys would seek to delay any trials, since this strategy has been characterized as "criminal defense 101", instead waiting until 2023 even to issue indictments.