Analysis: Trump’s classic delay and divert legal strategy is running out of road
A trio of new defeats extended former President Donald Trump’s legal losing streak as he seeks to delay or avoid scrutiny over his hoarding of classified documents and his 2020 election chicanery.
In another big victory for the Justice Department Thursday, days after it won convictions of far-right Oath Keepers insurrectionists, an appeals court halted a third-party review of material taken by the FBI from Trump’s Florida resort. Thursday’s order could allow prosecutors to press ahead more quickly as they probe possible breaches of the Espionage Act and whether Trump or aides obstructed justice over material that was carelessly stored and to which he may not be entitled under the law.
In another blow to the ex-president on Thursday, a federal judge ordered former Trump White House lawyers to give additional grand jury testimony after dismissing Trump’s claims rooted in attorney client or executive privilege.
The two lawyers had declined to answer certain questions during a previous appearance before the grand jury in the criminal investigation into the US Capitol insurrection. Both this case, and the matter focusing on documents taken by Trump from the White House, are now overseen by special counsel Jack Smith.
On another legal front threatening Trump, his former short-lived national security adviser Michael Flynn became the latest acolyte of his to be ordered to testify before an Atlanta grand jury. This investigation is specifically looking into Trump’s 2020 effort to reverse his loss in the swing state.
Another day of tough courtroom losses for the ex-president paralleled a similar volley of disappointments in the Mar-a-Lago and Georgia investigations and over his failed bid to keep his tax returns private, which shook Trump world before Thanksgiving. The Justice Department’s run of major victories is finally calling into question one of Trump’s lifelong strategies to avoid accountability – the use of the courts to delay or jam up cases against him in endless litigation.
And the rulings by judges, in some cases Republican appointees, are also sending a message that Trump’s massive and often risible claims of executive and attorney client privilege are an unreliable shield against investigation. Trump’s penchant for appealing all the way to the Supreme Court – and the conservative majority that he built – does not seem to be working so far either, after the high court declined to intervene on his behalf in several key cases in recent weeks.
Taken together, this pattern of futility is reinforcing a principle that cuts to the core of the American legal and political systems – that Trump, even as an ex-president, is not entitled to any more deference under the law than any regular citizen.
In some ways, the ex-president has been seeking protections that might have been due to him in office, even though he is no longer commander in chief. This belief might also be part of Trump’s motivation for the early launch of his 2024 presidential campaign – as he claims he is the victim of political persecution in order to inflame his base supporters against the Washington establishment again.
“Donald Trump’s approach any time he is being investigated for anything is to delay and to use the courts as a mechanism to delay – and for him it works because he is a former president. We are all tangled up in questions about can you prosecute or indict somebody who is running for president,” Connecticut Democratic Rep. Jim Himes, who sits on the House Intelligence Committee, said on CNN. “It doesn’t work in the courts, though. He loses in the courts almost all the time,” Himes told CNN’s Alex Marquardt on “The Situation Room.”
The Justice Department’s success in removing Trump’s legal obstacles to its investigations may also be moving the country toward the resolution of one of the most fateful questions haunting any modern political campaign: Will an ex-president who is running for the White House again, and has a history of inciting violence to further his anti-democratic ends, face criminal charges?
The latest courtroom setbacks for him also come as the House select committee investigating the January 6, 2021, insurrection prepares to issue a final report, which, judging by its hearings, will paint a devastating picture of Trump’s conduct. The panel will meet on Friday to debate whether to make any criminal referrals, though such a move would not compel the DOJ – as it pursues its own inquiries – to act.
The most significant legal ruling on Thursday invalidated a lower court ruling by a Trump-appointed judge, Aileen Cannon, who appointed a third-party official known as a “special master” to sift through thousands of pages of documents removed from Mar-a-Lago by a court-approved FBI search in August. The bureau found 103 classified documents among that haul. In its ruling, a three-judge panel on the 11th Circuit Court of Appeals said that Cannon should never have intervened in the case and that it did not meet the standard of extraordinary circumstances that merit interventions in Justice Department investigations.
“It is indeed extraordinary for a warrant to be executed at the home of a former president – but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation,” the court said.
Essentially, the Justice Department had argued that if a precedent was set for Trump to have a special master, almost every other citizen in the country would be entitled to a similar step.
Norm Eisen, a legal and ethics expert who served as special counsel to the House Judiciary Committee during Trump’s first impeachment, described Thursday’s ruling as a “stunning rebuke of Judge Cannon but also (of) Donald Trump and his lawyers.” He told CNN: “The court makes the point if we applied this ruling, across the board, to all Americans, to anyone who gets a search warrant, the judicial system couldn’t work.”
Trump’s legal team is weighing whether to lodge yet another appeal to the Supreme Court on behalf of the former president, sources familiar with the discussions told CNN.
Trump’s sweeping claims of presidential and personal privilege, which were a feature of his presidency as he defied congressional scrutiny, have translated to his multiple legal battles since he left office.
On Thursday, however, Washington, DC, District Court Chief Judge Beryl Howell ruled that former White House counsel Pat Cipollone, and his deputy, Patrick Philbin, needed to appear again before the grand jury. The pair previously testified in September but declined to answer certain questions citing Trump’s privilege claims. Neither lawyer responded to CNN’s request for comment. And Trump is expected to, as usual, lodge an appeal. CNN has reached out to his representatives.
New developments surrounding Cipollone and Philbin came two days after another sign emerged that the probe is reaching deep into the ex-president’s former inner circle.
CNN first reported that former Trump adviser Stephen Miller testified to the grand jury on Tuesday. Miller, one of Trump’s closest ideological soul mates, speechwriters and the architect of hardline immigration policy, might be in a position to help prosecutors glean what was in Trump’s mind in the days and hours leading up to the Capitol insurrection.
His appearance was the latest sign that, slowly, the courts and the judicial system are working through the aftermath of the worst attack on democracy in modern American history and that Trump’s efforts to stave off scrutiny in perpetuity may eventually fail.