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How Jack Smith's three-dimensional chess moves outwitted Trump's legal strategy...
Many have likened the current legal battle between the DOJ and Donald Trump’s legal teams as a chess match— replete with pawns, castles, knights, and a wannabee king. With the new indictment issued this week, the DOJ case against former president Donald Trump will mark a watershed moment in our history. No matter how the trial ends, it will rival the most consequential court cases argued before an American judge and jury. It may, in fact, rise to the level of those important cases argued before the Supreme Court, that is unless a Trump appeal is brought before the highest court’s nine Justices and their decision stands as a landmark ruling rivaling the most influential decided by the Court.
In the current matter, of particular interest to historians may well be Jack Smith’s trial strategy and what appears to have been an ingenious maneuvering of the Florida court in his earlier indictment of Trump and an associate in the documents case and how Smith played that court and the Trump legal team to his advantage.
While everyone focused on the appointment of Judge Cannon to hear the documents case, and her past record of bending her decisions regarding the former president in his favor, some questioned Smith’s decision to file the indictment in Florida where an unsympathetic judge and jury awaited:
Would Cannon throw out the Federal indictment?
Could she delay the trial beyond the election enabling Trump to run, win and pardon himself and his cronies?
Would she hear the case and impose a sentence that would be a slap on the wrist in an example of judicial nullification?
Would a St. Lucie County jury with the support of a sympathetic judge nullify the prosecution’s case?
The nation’s attention was fixed on the inexperienced judge who had shown great deference in the past to her patron. Cannon’s prior decisions in the preliminary motions in the case were reversed by a three-judge Federal appeals panel in a rebuke that called into question her judicial competence:
A three-judge panel of the U.S. Court of Appeals for the 11th Circuit was rather unsparing in unanimously granting the Justice Department a reprieve from Cannon’s order barring them from reviewing documents with classified markings seized from Mar-a-Lago. The stay is temporary, but the reasoning is firm.
They repeatedly rejected not just the Trump legal team’s lack of arguments, but also Cannon’s acceptance of them. Indeed, they suggested it was inexplicable that Cannon ruled for Trump even by her own logic.
Florida’s Legal Swamp
Judge Cannon took the bait. She pushed the opening of the trial to May with the opportunity for Trump’s defense team to force further delays effectively putting off the case until after the election. This would allow Trump to run for president as a defendant in a blue suit rather than an orange jumpsuit. Again, some would argue, Cannon found a way to accede to the defense counsel’s request to put the trial off to Trump’s benefit. All he would need to escape all charges was to win the election with a scorched earth campaign and pardon himself.
Smith’s next move made that possibility even more likely as he added a superseding indictment that would give Trump’s lawyers more reasons to argue for delays— allowing Cannon more cover to grant the delays.
The 45-page indictment handed down this week in Washington minimizes that prospect by ensuring that the most important of the trials facing Trump will occur within the window established by the Florida court and will likely be heard and decided before the American voters head to the polls in November of 2024. Judge Aileen Cannon’s power to determine who sits in the White House has been minimized and her trial will be made to appear anticlimactic to the D.C. case that will have been heard in Washington, D.C. This doesn’t make certain Trump will be convicted, a jury of 12 citizens have that responsibility, but it does give Smith’s prosecution team a fair hearing of the issues and will reduce the opportunity for the Florida court case to be determinative. It will also negate any advantage for the Trump defense to further delay hearing Smith’s rock-solid case for obstruction because, at that point, the case of the documents would represent at best a “hail Mary” for Trump to get a court victory before the election if, in fact, the D.C. case convicts Trump. Given the options, the latest indictment gives the government the better chance at victory and sealing the fate of Donald Trump.
Technically, the D.C. case is more complex, and its four charges represent crimes at the heart of the case against Trump’s bid for another presidential term. To his credit, Smith has streamlined his case to focus on one defendant. The indictment hints at a vast amount of indisputable evidence given in some cases by Trump’s own behavior and by the testimony of his close associates. The obstruction charge alone could assure a convicted defendant of a sentence of more than a decade. While the Mar-a-Lago documents case has a strong obstruction charge and conspiracy elements that should prove compelling to a jury, the vagaries of the venue make it a risk for prosecutors, especially if the judge is overly sympathetic to the defendant who appointed her.
The Unicorn Defense
Smith’s tactics relied on Cannon’s inexperience. When the documents trial calendar was being proposed, it was clear that the defense wanted to put it off until after the election:
“Proceeding to trial during the pendency of a Presidential election cycle wherein opposing candidates are effectively (if not literally) directly adverse to one another in this action will create extraordinary challenges in the jury selection process and limit the Defendants’ ability to secure a fair and impartial adjudication,”
They argued that the uniqueness of this case, a Federal indictment against a former president and a current presidential candidate, was beyond the court’s ability to adjudicate the issues. Their brief included an appeal to a friendly judge to outright dismiss the case based upon a specious argument that would establish a precedent making the former president immune from any prosecution:
...the legal questions are significant and present issues of first impression. The intersection between the Presidential Records Act and the various criminal statutes at issue has never been addressed by any court, and in the Defendants’ view, will result in a dismissal of the indictment. The authority, vel non, of the Special Counsel to maintain this action likewise presents a potentially dispositive issue of first impression in this Court. Additional significant matters include the classification status of the documents and their purported impact on national security interests, the propriety of utilizing any “secret” evidence in a case of this nature, and the potential inability to select an impartial jury during a national Presidential election. Moreover, the extensive and voluminous discovery, coupled with the challenges presented by the purportedly classified material that has yet to be produced, will require significant time for review and assimilation. All these questions further warrant a continuance pursuant to 18 U.S.C. § 3161(h)(7)(B)(ii). The Government’s apparent view that these unprecedented issues should be adjudicated on an expedited basis is simply untenable and ignores the magnitude of this case. (emphasis mine)
Their filing attempts to immunize their client as a legal unicorn, a defendant who stands outside the law simply because of the audacity of his transgressions and his former status as president.
The new indictment makes this argument moot. In setting a May trial date, Cannon was proving herself to be too clever by half. An early spring date would have been more appropriate given the facts. The government had fast-tracked the Discovery process and the case itself was fairly simple— remember, the trial date was set before the superseding indictments. The conspiracy case against Trump and Waltine Nauta was not especially complicated given the facts cited in the indictment. By moving the trial to May, closer to the 2024 election, the defense would be expected to enlist legal maneuverings to further delay the start until their argument for a post-election trial became more likely. Check.
This week the man who Trump labels as deranged and has called a “sick puppet” has proved himself a worthy adversary to his slow-footed opposition. The window opened up by Cannon and requested by Trump lawyers, may just be wide enough to allow for a scenario in which their client is bogged down in Federal Court in the Nation’s Capital; in Georgia State Court in Atlanta; and courts in New York— all far more favorable venues for prosecutors of the former president. In addition, the second E. Jean Carroll civil trial is scheduled in January. By that time Judge Cannon’s court becomes an afterthought, Donald Trump begins his appeals, and America may begin to wake up from our long national nightmare.