How Trump turns the system against itself

Our legal system is a creature of the 19th Century and was never meant to deal with a malefactor like Trump -- but there's still a way to win.

How can this be happening?

That’s the question I get the most often now.

How can he manipulate the system like this? Don’t these judges know they’re getting played?

Donald Trump cannot win his cases fair and square, because he doesn’t have the facts behind him and he doesn’t have the law behind him either. He can’t win clean, so he has to win dirty. That’s generally been his M.O. for 50 years of evading justice: delay, distract, destroy. Cause delays in the process; create distractions and diversions to shift attention away from the actual merits of the case against him; destroy the images and reputations of the opposing lawyers and even the judges, while threatening to destroy any witness or juror who goes against him.

While we have our rules for defeating him, these are his three primary moves.

Delay has been his most effective move thus far in the prosecutions he currently faces. Yes, they’ve had a very negative impact. Yes, they show a lot of weaknesses in our system. Yes, it means that Trump will likely elude the worst of the consequences for his misdeeds until sometime after the 2024 election. And yet — and yet — he cannot escape them forever. He may be able to use our appellate legal system to delay justice, even for years, but if prosecutors remain relentless and persistent, they can still prevail (with our help).

The immune overresponse

Whether intentionally or not, Trump has managed to weaponize our legal system against itself. This is especially true of our appellate system (our system for handling appeals), which has become a relic, a vestigial subculture of the 19th Century that has somehow survived into the 2020s (for now), as though we were entrusting the Amish with deciding our most important legal issues.

The American legal system, 2024

Our system is based on an adversary model, where we rely on the opposing parties and their lawyers to flush out the arguments and the evidence, whereas the judge is mostly there to be a referee, determining procedural rules and keeping things orderly. Thus even if a party makes an absolutely outlandish or indefensible argument, it is up to the opponent to point out how outlandish or indefensible it is and to make a counterargument accordingly. The judge’s role in that situation is not to reject the argument — at least not at first — but to set up a briefing schedule, giving the two sides deadlines for submitting their briefs, and perhaps some sort of oral argument or hearing. Underlying this system is a bedrock principle of due process, of giving every litigant their day in court.

Lawyers for Trump and his cronies have used this system to their full advantage. They’ll stake out extreme positions or find arguments that are ultimately going to lose, and the system suddenly swings into action to give those positions and arguments a fair hearing.

Oh, what’s that you say, counsel for Mr. Trump? You think he should be able to order Seal Team Six to assassinate his political rivals while being immune from prosecution forever? Okay, your brief is due in 90 days.

In this extreme form, where the arguments lack merit but are done with a nefarious purpose to delay the case and to frustrate justice, they are the legal equivalent of provoking an immune overresponse. Suddenly the system, which normally works well, is turned against itself and begins attacking vital organs.

This is even more destructive in the appellate context, where nothing is designed to move quickly. An appeal often takes a year or more. Each side gets months and months to write a brief. The judges take months and months to read the briefs, research the case, hear oral arguments, make a decision, and write the opinions. It is a stately process that has not changed all that much in over a century.

The difference is quite visible from within a high-powered law firm, where the trial litigators often look and sound like they’re in one of the kitchen scenes from The Bear (just with laptops rather than knives), whereas the appellate lawyers are more like professors, calmly and quietly spending their days reading caselaw and marking up drafts to remove split infinitives.

This is how Trump and other cronies like Steve Bannon are manipulating the system. They get the case into the appellate queue, and they can create months if not years of delays.

Even a trial-level judge can be worked in the same way, albeit with less time elapsing: after Trump got his immunity decision from the U.S. Supreme Court, he has now gone back to Judge Juan Merchan in New York and won a two-month delay on his sentencing. Judge Merchan means well here: he’s trying to allow enough time for Trump’s argument on immunity to be taken seriously. But the problem is that Trump is not making a serious argument. He’s making a frivolous argument — namely, that reimbursing his personal lawyer for paying hush money to a pornstar he slept with is somehow an “official act” of the presidency because the checks were signed in the White House while he was in office — purely for purposes of delay. And the system was not designed to deal with a litigant acting in such flagrant bad faith.

How can we fix this? This is a topic deserving its own longer post, but suffice it to say for now that we need a vast increase in judicial and prosecutorial resources so we can increase speeds overall and place certain matters on expedited fast tracks for swifter processing, and we also need a vast increase in the deployment and amount of sanctions (fines levied by judges) for filings made purely to create delays or diversions.

And even if we could fix the system overall, how do we combat the current situation with Trump? Is there any light at the end of these tunnels?

The Trump University 18-month delay and what it means for us now

A lengthy appellate interlude does not necessarily mean that a case is dead or that justice is not forthcoming. The Trump University case had a long delay for an appeal; it’s a part of the story that is now often forgotten, but it’s especially illustrative given the moment we now face.

There, as I describe in more detail in the book, Trump’s lawyers seized upon some ambiguity regarding the length of the statute of limitation for the civil fraud statute the New York Attorney General’s office was using, New York Executive Law 63(12); they convinced the trial judge to apply a three-year limitation period rather than a six-year period. In that particular case, though, most of the money Trump had conned out of his victims had occurred precisely between year 3 and year 6; the case was only worth $1 million with a three-year statute but more than $42 million with a six-year statute.

So we had to go up on appeal. That process took from the fall of 2014 to March 2016, when we finally won a ringing decision from the First Department (the intermediate appellate court covering Manhattan) holding that a six-year period applied. That decision opened the door for the AG’s office to take the case to trial, which was then scheduled for that spring. Trump then moved to delay the trial given the presidential election, and the judge made a terrible decision and agreed to move the trial to after Thanksgiving. After Trump won the election, the case finally reached a $25 million settlement in November 2016 — effectively an acknowledgement from Trump that he was very likely to lose the trial.

That 18-month delay was frustrating, annoying, and far too long — and yet it ultimately yielded the result we had been seeking. Sometimes justice delayed is not justice denied.

That said, well, sometimes it is. Here, today, it’s not simply a question of bringing Trump to justice eventually. We cannot necessarily play the long game here. The cases may get delayed, but the election will not be (or else we have a problem of an entirely different magnitude).

In other words, while I remain cautiously optimistic that Trump is on track to lose more of these prosecutions and to be imprisoned, the election could, of course, change all of that.

And that’s where we come in. Just as a public demand for justice is a necessary prerequisite for commencing investigations and prosecutions of high-profile, privileged defendants, that public demand for justice must remain in place long enough for the prosecutions to succeed.

We need to keep demanding justice, at the ballot box, until justice is delivered — however long that takes.

Yes, we need to fix the system. But if we don’t win, there won’t be a system to fix.