Silverman: Donald Trump could write The Art of the Continuance

Donald Trump intends to win the presidency one continuance at a time. Throughout his life, that’s been a standard litigation tactic, but never with so much at stake. For him. And for us.

Because of horrific prosecutorial dawdling, Trump may avoid any criminal trial before Election Day, Nov. 5, 2024. Continuances are routine at the outset of most prosecutions. They generally become more difficult to obtain as cases age. 

If I had five dollars for every motion to continue I’ve witnessed, I’d be writing from my yacht. Give me ten bucks for speedy trial waivers, and I’d own the destination island, too.

But normally, continuances don’t win cases. Push eventually comes to shove. Or plea deals. Defendants can run, but they can’t hide. Trial dates eventually happen, and consequential verdicts are obtained. 

With Trump, however, no matter how many times Special Counsel Jack Smith indicts him, 2024 voters could effectively overrule and dismiss Smith. If elected, Trump says he’ll use the Department of Justice and other agencies as retribution against MAGA enemies. Uh oh.

Existing state prosecutions would be pesky for a victorious Trump. Swing states with aggressive attorneys general could pursue state criminal cases for Trump’s fraudulent electors. Even with Smith gone, blue states will want justice.

Perhaps Smith’s soon-to-be-filed cases against Trump and cronies will catch a rocket docket federal judge with experience and backbone befitting lifetime tenure. A tough jurist, unwilling to grant continuances, might corral Trump inside a criminal courtroom.

Weeks ago, Smith told Trump-appointed rookie Judge Aileen Cannon she should set Trump’s trial for Dec. 11, 2023. Team Trump responded last week with its own ambitious date — the 12th of Never.

If and when Cannon sets a trial date, appreciate that first settings frequently get continued. There are many statutory bases Cannon can cite to make easy appellate-proof continuance rulings in her benefactor’s favor. 

Buttering her up on Fox, Trump will likely demand more of Cannon, such as immediate dismissal. No judge will go that far. Would she?

Regardless, Cannon seems unlikely to bite the hand of the man who appointed her in 2020. She likely dreads the thought of presiding over a Trump trial and any eventual sentencing. Who could blame her?

Should she desire, Cannon can lie low and grant continuances as case complications grow. She can hope this Mar-a-Lago case goes away or gets subsumed. 

Smith’s biggest fish to fry is the Big Lie and Trump’s insurrection. More major felony charges are imminent. America’s best hope is assignment to non-Florida federal judges who won’t countenance Team Trump’s continuance games. 

A tough Georgia judge could also make Trump sweat this summer. Fulton County District Attorney Fani Willis will soon be bringing charges. Expect Smith to strike again first, in hopes he can take Trump to trial pre-election. 

Trump suspects Willis is coordinating with Smith. We should hope so. There’s nothing wrong with that. But that won’t stop defendant Trump from complaining. About that and everything else. Complaining causes delays.

Trump will attempt to disqualify judges and prosecutors just as surely as his legislative minions are trying to disqualify the entire FBI. Each attempt will be time consuming. 

Trump knows every trick in the continuance book and will insist his lawyers employ them. If not, the lawyer will be fired, and Trump will use that as further reason for delay. We’ve seen this show. So have experienced judges.

Last Thursday morning, I sat yet again in a Colorado district courtroom, waiting for my client’s case to be called. Several defendants from the crowded docket came to the lectern and asked for more time to obtain counsel. 

Other defendants had attorneys who requested continuances for various and sundry reasons. Everybody got more time.

My client’s case got called. I’d previously obtained several continuances, and the prosecutor finally decided to dismiss felony accusations for a more lenient resolution involving a misdemeanor and deferred sentence. 

Passions fade over time. So do memories. Pre-trial delays usually benefit a criminal defendant. Why rush when a conviction and/or jail may be looming? Often, the plea deal improves. Maybe jail can be avoided.

There are reasons to avoid this standard criminal defense strategy of delay. For example, if your client is in jail, an acquittal means freedom, and time is of the essence. O.J. Simpson went to trial fast, and he won while in custody.

Consider this. If Trump was wrongly accused by Smith for retaining classified documents, he could have a speedy trial. Presiding will be “very smart and very strong” MAGA-Judge Cannon in a jurisdiction that supports Trump overwhelmingly. 

Trump could enjoy the presumption of innocence and wouldn’t be found guilty unless 12 fellow Floridians agreed there was proof beyond a reasonable doubt. A not guilty verdict could help propel him to the presidency. But this will never happen.

Rather than ever defend himself at trial, Trump will remain outside courtrooms, spinning his yarns. Unless some future judge shows strength and refuses to grant lengthy continuances, no criminal trial seems likely to save us. That may be left to voters.

Craig Silverman is a former Denver chief deputy DA. Craig is columnist at large for The Colorado Sun and an active Colorado trial lawyer with Craig Silverman Law, LLC. He also hosts The Craig Silverman Show podcast.