Though his campaign slogan is still “Make America Great Again,” Donald Trump’s new legal filing seems to suggest another motto: Keep Me Out of Jail 2024.
Critics have argued for over a year that the coup-attempting former president’s efforts to regain his office are as much about painting his prosecutions as politically motivated as they are about a desire to govern — which Trump’s lawyers all but admitted in a brief filed late Monday in his secret documents case.
“President Trump is running for president of the United States and is currently the likely Republican Party nominee. This undertaking requires a tremendous amount of time and energy, and that effort will continue until the election on November 5, 2024,” said the filing, written by Chris Kise and Todd Blanche.
“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 defendant’s ability to secure a fair and impartial adjudication,” they added.
Their 12-page filing asks U.S. District Court Judge Aileen Cannon to reject the Department of Justice’s request for a December trial date. Instead, the filing asks her to postpone it indefinitely, and certainly after the 2024 presidential election.
What the brief neglects to mention is that, should Trump win, he would have the unfettered ability to end any and all federal prosecutions against him, no matter how far advanced.
Neither Kise nor Trump’s campaign responded to HuffPost queries. Blanche declined to comment.
“This is insanity,” said Glenn Kirschner, a former prosecutor who spent more than two decades in the U.S. Attorney’s Office for the District of Columbia. “There’s a legal term for this. It’s: Are you flipping kidding me?”
Norm Eisen, a former lawyer in Barack Obama’s White House who worked for the House prosecution team during Trump’s first impeachment, said there is little question that Trump, as head of the executive branch, could make his federal cases go away and fire special counsel Jack Smith.
“Trump could certainly, if reelected, order the Department of Justice to drop all federal charges or otherwise interfere with the case,” Eisen said.
George Conway, a prominent Republican lawyer who supported candidate Trump in 2016 but soon became a harsh critic after he took office, said Trump’s attorney general could even cite decades-old policy.
“Remember that it has been the Justice Department’s position since 1974 that a sitting president cannot constitutionally be prosecuted for a crime,” he said. “So the new Trump political appointees could point to that to justify terminating the prosecution.”
Kise and Blanche base some of their arguments on the complexity of the case, the need for them to be processed for security clearances, and the sheer volume of collected evidence that has already been turned over to them but that they have not had a chance to review.
“The government produced more than 428,300 records (in excess of 833,450 pages) consisting of approximately 122,650 emails (including attachments) and 305,670 documents gathered from over ninety (90) separate custodians,” they wrote. “The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).”
But sprinkled throughout the filing, Trump’s lawyers portray the case as a “prosecution of a leading presidential candidate by his political opponent,” rather than that of someone formerly entrusted with top-secret documents who took them home with him and then hid them from authorities seeking their return.
Smith last month procured an indictment charging Trump with 37 felony counts that could send him to prison for decades. The special counsel is also pursuing an investigation into Trump’s efforts to overturn his 2020 election loss, culminating in his Jan. 6, 2021, coup attempt.
Trump has been verbally attacking prosecutors at the DOJ, in New York City and in Atlanta since early 2022 for investigating him. Manhattan District Attorney Alvin Bragg is prosecuting Trump for falsifying business records to hide a $130,000 hush money payment to a porn star just ahead of the 2016 election, while Fulton County District Attorney Fani Willis is investigating Trump for his attempts to overturn his election loss in Georgia, with charges likely next month.
Winning the next presidential election, however, would not be quite as helpful to Trump in those state-level prosecutions.
Eisen said one option that courts, including the Supreme Court, might approve is to allow those cases to play out but then stay any prison time until after Trump is out of office. There was also a second option, he said.
“The court could find that the Oval Office could be a cinder block one, and the business of the presidency could be conducted from a prison cell,” Eisen said.
But Conway said a more likely scenario, should Trump somehow find himself behind bars as he wins the presidency, is for the courts to spring him in time for his inauguration.
“I think that he’d have a good argument that, whether or not he can be prosecuted during his term of office, he could not be incarcerated by a state for as long as he serves as president,” Conway said.