The strategy of the delay defense

Shannon Bohrer

(3/2024) Our former President is facing numerous criminal charges and civil cases while also running for President – again. One might think that the civil cases against him, which could cost him hundreds of millions of dollars, could be disastrous, especially for his reputation as a billionaire businessman. However, the criminal cases could result in his incarceration. The charges against him include ninety-one felony charges from four different cases. There are forty-four federal charges and forty-seven state charges that all total carry possible incarceration of 641 years. Obviously, if he is found guilty in just a few cases, he could be incarcerated for the remainder of his life. I do not know of anyone in our county’s history who ran for the presidency or any other office while facing such a volume of civil and criminal charges. Even more extraordinarily incredible is the support he still enjoys.

There has been broad reporting on the topic of why the former President is running again for the office of President. Most of the thoughts are that if he were to be successful in winning the office, once sworn in, he could then pardon himself. Also reported is the potential argument against this strategy. The President can only pardon federal crimes, not state crimes. So, if he were to be successful and win the presidency, what would happen if he were convicted in state courts for state crimes? Would he be immune from incarceration while in the office? If so, could he be incarcerated after leaving the office? That raises another question: if elected, would he try to remain in office - again?

The civil cases against him are well known, with two already resolved - not in his favor. The numbers are not good. In a recent case he was ordered to pay 454 million dollars in fines and interest. He already owes E. Jean Carroll 83 million and it was reported that he owes "400 thousand to the New York Times." He sued them and was unsuccessful and has been ordered to pay their legal fees. These numbers do not include his own legal fees.

In the civil case, where he overvalued his properties, he could lose business and properties in New York. In this case his defense was that he and his family relied on accountants for evaluations of the properties. However, testimony demonstrated that the accounts used the numbers given to them by the Trump organization. Testimony also included "I don’t remember" and "I don’t recall." Placing the blame on others when they use the information that you provide does not sound like a good strategy.

While the civil cases have the potential to break the bank and dissolve the Trump organization, it is the criminal charges that could take his freedom. Of course, when someone is charged with a crime, there is a presumption of innocence. The former President himself has repeatedly described the charges as "witch hunts" as if there are no foundations for the charges. He has also accused the current administration of collusion with the justice department in bringing the charges. His principal reasoning is that he is running for President, and since he is the presumptive nominee of his party, the charges are, therefore, "political."

The former President and his lawyers have been busy responding to the criminal courts on a variety of issues related to the charges, like potential witnesses, the discovery of evidence, pleadings, and appeals. Strangely, the defenses that he has offered do not include "witch hunts" or "political motives," but they do offer some peculiar arguments.

The documents case, where the former President has been charged with possessing classified documents, was considered by many experts to be a slam-dunk for the prosecution. Documents found in his Florida home while executing a search warrant were clearly marked as classified. His first defense was that he declassified all the documents. When that did not work, his lawyers requested an assessment of any damage to national security, as if damage to national security must be demonstrated. It does not.

Since then, the lawyers have requested information on why and how the documents are related to national security, which is a requirement of the Espionage Act. Continuing to request more information about the charges and documents is a right of any defendant, but the argument that is offered is that since there was no damage to national security, the charges should be dropped.

If an individual is charged with an attempted crime and the crime was not successful, that does not constitute a defense. Saying I committed the acts that I was charged with, but no harm was found, is not a defense. It does offer other insights. What it does say is that he is admitting to the actions that he took and concealed the documents. So, in essence, he is admitting guilt. So, why go in this direction?

In Washington, D.C., the former President has been charged with election subversion or trying to overthrow the government. During a hearing by the court of appeals, Trump's lawyers argued that "he can’t be prosecuted for trying to overturn the 2020 election, raising the potentially extreme implications of absolute Presidential immunity". Accordingly, his lawyers believe any charges should be dismissed because he should be afforded total immunity. When proffered, the Trump lawyers were questioned if the total immunity included "… selling [of] pardons or even assassinating political opponents."

The prosecution countered that if a President has total immunity for any acts committed, any sitting President could do anything they deemed necessary to remain in office, not unlike having an insurrection. As stated above, one Judge on the panel expressed the idea that unlimited immunity would allow Presidents to kill their opponents.

While that position did appear extreme, to help his cause, Donald Trump posted (in all caps) on his Truth Social post, "A PRESIDENT OF THE UNITED STATES MUST HAVE FULL IMMUNITY, WITHOUT WHICH IT WOULD BE IMPOSSIBLE FOR HIM/HER TO PROPERLY FUNCTION,"… "ANY MISTAKE, EVEN IF WELL INTENDED, WOULD BE MET WITH ALMOST CERTAIN INDICTMENT BY THE OPPOSING PARTY AT TERM END. EVEN EVENTS THAT 'CROSS THE LINE' MUST FALL UNDER TOTAL IMMUNITY, OR IT WILL BE YEARS OF TRAUMA TRYING TO DETERMINE GOOD FROM BAD. THERE MUST BE CERTAINTY."

Again, Trump was not offering a defense for the criminal acts he is charged with; instead he in essence is saying yes, that if he committed the acts, he should not be charged. According to Trump's position, President Biden, while in office, could order the assassination of Trump. Again, his pleading does not offer a defense, and they never mentioned "witch hunts," or "political motives."

Because "witch hunts" and "political motives" have never been offered in the courts, are they only being used to sway public opinion? Maybe the obvious tactic is the use of motions and appeals, whenever possible, to delay the trials until after the election.

Distractions are often used when you want to prevent someone from looking behind the curtain.