Strategies for Judges to Overcome Trump's Delay Tactics

Editors Note: Thomas G. Moukawsher, a former Connecticut complex litigation judge and former co-chair of the American Bar Association Committee on Employee Benefits, sheds light on Judge Aileen Cannons decision on Friday to keep the scheduled May date for the Mar-a-Lago trial. While it may initially appear as a setback for former President Donald Trump, who sought to delay the trial, it actually marks a partial triumph for his primary legal tactic of prolonging the proceedings until after the 2024 election.

Thomas Moukawsher

It is of utmost importance that Cannon does not adopt his strategy, and neither do the judges in his three other criminal cases, as he has denied any wrongdoing in all four. Fortunately, judges have a few options to counter his tactics of delaying, provided they are willing to take action.

Cannon, the federal judge in Florida overseeing the case regarding Trump's mishandling of classified documents at his Florida residence, made some adjustments to the trial schedule. Although she maintained the same trial date, she granted Trump's request for additional time by extending certain pretrial deadlines. The more the pretrial tasks pile up close to the trial date, the higher the likelihood of a delay because of the overwhelming workload.

Furthermore, Trump has not yet lost his attempt to postpone the trial. The judge deemed it "premature" to make a decision at this stage and acknowledged Trump's concerns over the vast amount of evidence that his legal team needs to review before the trial (which is his primary argument for the delay). In legal proceedings, granting one delay often leads to requests for further postponements, providing Trump with a glimmer of hope.

The utilization of litigation stalling tactics by Trump's lawyers is a familiar sight. Being well-versed in the intricacies of American lawsuits, Trump understands that prolonging a case can often lead to its derailment, and he is placing a significant bet on this strategy. Delays result in both time and financial costs. Furthermore, evidence has a tendency to vanish, memories fade, and the individuals involved, be it prosecutors, judges, or even presidents, come and go. As a consequence, the charges may be mitigated, the penalties lessened, or perhaps the entire affair may be dropped.

WEST PALM BEACH, FLORIDA - JULY 15: Former President Donald Trump addresses the Turning Point Action conference as part of his ongoing 2024 presidential campaign in West Palm Beach, Florida. The event took place at the Palm Beach County Convention Center. (Photo courtesy of Joe Raedle/Getty Images)

Trump's reasons for postponing his trial lack substance.

The first strategy to delay a case involves filing numerous motions. Firstly, you dispute the jurisdiction of the lawsuit's location. For example, Trump has argued that his election fraud case should be relocated from Washington, DC, as he believes he will not receive a fair trial there. Secondly, you challenge the credibility of the individuals bringing the lawsuit, arguing that they do not have any legally recognized interest at stake. Trump has recently attacked the election fraud case on these grounds. Lastly, you question the validity of the claim itself, deeming it faulty and requesting its dismissal. Trump is currently utilizing this tactic in both DC and Georgia.

Each motion, when separately filed and heard, can take several months to resolve. Both parties submit their respective briefs, which are then argued in court. The judge ultimately writes a decision before the next motion is filed, and the cycle begins anew.

By following this typical court process, Trump can effectively prolong the cases, potentially delaying resolution until after the 2024 election. Moreover, he can exploit the number of pending motions as a pretext to request additional time. This is the tactic that Cannon overlooked: creating a workload and then using its magnitude as grounds for complaint.

Judges can prevent this by regulating the motion process. While parties are entitled to file challenges, judges have the authority to manage the case. In certain situations, judges may exercise their inherent authority and combine challenges to their jurisdiction with challenges to the legal sufficiency of claims, attempts to transfer the case, and efforts to change the trial date. Although judges typically allow parties to set the pace of the proceedings, not combining these challenges in complex cases is an error.

Consolidating pre-trial motions only addresses the initial delay tactics. The most time-consuming aspect of lawsuits is often the exchange of evidence, known as the discovery process. Both sides request documents from each other, leading to objections and subsequent court actions. This cycle continues as there are always more documents, resulting in further opportunities for motions.

On November 6, 2023, Donald Trump, the former President of the United States, is seen participating in the Trump Organization civil fraud trial at the New York State Supreme Court in the Manhattan borough of New York City.

Jabin Botsford/Pool/Reuters

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To effectively address the challenges of discovery, judges should proactively oversee the process by conducting a discovery conference at the outset of the case. Given the typically apparent nature of required documents and witnesses, the judge should streamline the request and response procedure by issuing a court order mandating the exchange of specified documents within 30 days. Additionally, if necessary, the court order should delineate the permissible depositions of witnesses within a 60-day timeframe.

Regrettably, many judges refrain from adopting this approach due to their belief in deferring to attorneys and their expectation that attorneys can resolve their differences without resorting to a court hearing to determine document ownership. This viewpoint is fundamentally flawed and serves as the primary cause of the excessive time and exorbitant costs associated with lawsuits.

If the parties want something that the court hasn't ordered and the other side refuses to provide, they can easily request a hearing by emailing the judge's clerk. This can be done quickly and remotely. In cases that are particularly complex, the judge can allocate a few hours each week to oversee the process of gathering evidence and resolve the parties' claims from the bench on a single day. This eliminates the need to wait for weeks or months after a hearing to reach a decision.

Another aspect involves the attempt to directly criticize the judge. Trump, for instance, has attacked judges in Georgia and Washington. In some cases, judges choose to recuse themselves when faced with such challenges, leading to further delays. However, instead of recusing themselves, judges should promptly hold a hearing when a party attacks them. In this hearing, the accuser would be required to present their evidence of judicial bias. Typically, there is no evidence, resulting in the motion being denied. Judge Tanya Chutkan wisely followed this approach in the Washington election interference case.

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Trumps most powerful strategy when faced with setbacks is his ability to appeal. In the past, appeals were typically made after losing a case in the trial court. However, the current rules of court warfare allow for appealing every major ruling at every stage of the proceedings. This means that Trump can continue to appeal even when facing unfavorable outcomes. Usually, this would result in prolonging the legal process for years, potentially extending beyond the 2024 presidential election. Nevertheless, there is a way to avoid this. In cases where the national interest is at stake, appeals courts should prioritize and expedite Trump's appeals by giving them precedence over other cases on their schedule. Thankfully, some of Trump's appeals have already been handled promptly.

Parties in American courtrooms frequently exploit the legal system's inclination towards deliberation and delay. Judges must acknowledge this prevailing trend and take immediate action in the Trump cases, as the adage goes, "justice delayed is justice denied."