Donald Trump's attorneys have vaulted three efforts this week aimed at pushing back the former president's trial on charges alleging he covered up a sex scandal ahead of the 2016 election. After two failures, the most recent bid — a last-minute civil action against presiding Judge Juan Merchan filed Wednesday— promptly followed suit.
Just hours after filing, appellate court Judge Ellen Gesmer rejected Trump's request seeking a delay while the appeals court reviews several of Merchan's rulings, according to The New York Times. The decision allows Trump to have his lawsuit heard by a full five-judge appellate panel, which could pause the trial if they rule differently but not until after it begins Monday, The Hill notes.
Following the episode, "I would say he does look increasingly desperate, but he knows he's going to lose," Loyola Law School professor Laurie Levenson told Salon, speculating that Trump might be trying to "make some kind of record" for another purpose.
Part of Trump's efforts "is designed for the judges who handle the courtrooms," Levenson added. "He's going to lose there, but he can take snippets out of this and use it for his media and the court of public opinion and to sort of set up an argument that it's been an unfair proceeding."
While stalling is one of the former president's go-to legal tactics across his four criminal cases and other legal battles, his effort to delay the Manhattan trial by taking legal action against a judge and bombarding an appellate court with a week's worth of eleventh-hour delay tactics is a bold move, the Times notes.
Trump's rapid-fire efforts to delay suggest the presumptive Republican nominee is "fearful," especially as election polls indicate his possible conviction "could have an impact on his 2024 presidential campaign" and his standing with voters, David Schultz, a Hamline University political science and legal studies professor, told Salon.
Defendants "almost never" mount appeals before a trial, with a court "maybe" getting just one like Trump's pretrial, Schultz explained, emphasizing that courts instead prefer to address any problems that arise later. The swift rejections of Trump's slew of motions to delay makes clear he is "trying the patience" of the appeals court, he said.
"Trump is getting away with an incredible amount because he's ex-president and he's wealthy," Schultz argued, adding: "I think almost any other attorney representing almost any other client would be warned at this point against bringing any more frivolous motions and facing possible sanction."
Trump's Wednesday civil action against the judge — a special proceeding referred to as an Article 78 that's used to challenge New York State agencies and judges — included a request that the appeals court stay the case while it considers whether to remove Merchan, whom Trump's legal team argues has a conflict of interest because of his daughter's work as a Democratic political consultant, from the trial.
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Experts previously told Salon that Merchan's daughter's work does not present a conflict, and the judge has previously declined to step down from overseeing the case, citing a judicial ethics panel reaching a similar conclusion last year.
Their first bid this week to delay the Manhattan case — which will be the first of his four criminal cases to go to trial — was "more traditional," the Times notes, in asking to delay while the judges consider his request to change the venue to Staten Island, where Trump 2016 and 2020 election victories. That effort, which, if granted, would have postponed the trial indefinitely, was denied Monday.
The second was a separate Article 78 action against Merchan the same day, which saw Trump's lawyers asking the appeals court to delay the trial as it mulled his request to overturn his gag order. An appeals court judge declined the request.
Still, the former president and his legal team are poised to indulge in requesting further delays as the walls close in on the trial, experts predicted.
"It’s hard to imagine what other far-fetched tactics they might try but if they can find any claim that might be stretched to apply here we can be sure they will use it," Catherine J. Ross, a George Washington University constitutional law professor, told Salon.
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One of the last tactics Trump could pull out is firing his lawyers, Norman Eisen, a Brookings senior fellow and CNN legal analyst, told the network Wednesday, pointing out however that it's "been tried before in New York and rejected."
Schultz speculated that Trump may seek to appeal the case to the Supreme Court, either on First Amendment grounds — based on his lawyer's claim during Tuesday's emergency hearing that Trump's ability to campaign is "protected under the First Amendment" — or by attempting to tie it in with the high court's presidential immunity case, in which it will hear oral arguments later this month.
While the latter scenario is "unlikely," Schultz said, the former would be an "incredibly strange argument to make" predicated on a claim about rights to campaign "that's about as frivolous as it possibly could be in terms of arguments."
Levenson agreed, insisting that should Trump try to appeal to the Supreme Court, the justices will not take the case. Even if they did, she said, "I don't think he would win."
Instead, she sees a potential for the change of venue request to become "the most plausible basis for a legal argument" as the court, starting next week, navigates selecting a jury that will allow Trump to have a fair trial.
"I don't think we can say now that there are no more avenues for him to seek delay," Levenson added. "There are no more obvious avenues, but I don't know that we can say there are no more avenues."
Even with the range of increasingly obscure possibilities at delaying the trial available to him, Ross said Trump's "chances for success seem to be slim to none." If Trump's lawyers had "a strong claim, they would have used it already," she argued, noting that the courts "are onto their game."
The New York court system is "making it clear" to the former president that he's "like any other defendant": he will face a trial starting Monday and can raise any grounds for appeal after trial concludes if he has grounds to do so, Schultz added.
"He's had several bites of the apple at this point," he said, adding: "He's O for three. The Court of Appeals is saying, 'Just do the trial.'"
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