Donald Trump’s whole life has prepared him, not for the presidency, but for this moment—beset by lawsuits and criminal charges in court. Some calculations show he filed over 3,500 lawsuits over the years. He knows the vulnerabilities of our legal system and is having no trouble exploiting them.
He hasn’t needed much help in Florida. He appears to have a willing ally in Judge Aileen Cannon in the secret documents case who, so far, has either ruled in Trump’s favor or, in ruling against him, has left the door open to giving Trump what he wants later. What Trump wants is delay. Judge Cannon is likely to give it to him.
In Washington, Trump claims that he is so immune from criminal responsibility that he could have used Seal Team Six to assassinate his political opponents without consequences. Trump has bought himself time with this issue, including asking for more time to petition the Supreme Court. If he fails on this issue, you can expect a series of other claims—each one holding things up.
In Georgia, Trump’s seedy collaboration with the National Enquirer has combined with his connoisseurship of the courtroom to deliver us a Jerry Springer Show moment with Trump and his allies examining the love life of District Attorney Fani Willis on live television. Once again, Trump has come out a winner, smothering the main event and making Willis, Judge Scott McAfee, and the judicial system look ridiculous.
And most ridiculous of all, the first criminal case against Trump going to trial is the case about his payoff to a porn star. Manhattan District Attorney, Alvin Bragg claims Trump falsified business records and disguised a campaign contribution by paying hush money about an affair. More silliness, more salaciousness. More distraction from what matters: the allegation that Donald Trump, president of the United States, attempted by fraud, coercion, and a violent attack on the United States Capitol to overthrow the democratically elected government of our country.
And if you think Trump at least faced the music in his New York civil fraud case with Justice Arthur Engoron’s ruling ordering Trump to pay $355 million in penalties, think again. The case is far from over. Trump will stall the case, diddle the docket, drag out the appeal, appeal from the appeals court, and, if he becomes cornered resort to another trick he has considerable experience with—he will declare bankruptcy.
It doesn’t have to be this way, but deeply engrained formalism in court plays right into Trump’s hands. When in doubt, judges delay. When there is a claim, however frivolous and intentionally dilatory, it must receive the same slow service as every other claim at the courthouse window. While the idea of due process is the constitutional promise of a meaningful hearing at a meaningful time, too many judges prefer the appearance of fairness that long delays promise but don’t deliver. Too many times, justice delayed is justice denied, but judges in our contemporary system simply aren’t set up to do it any other way, and Trump and other courthouse cognoscenti know how to exploit it.
Instead of exalting form over substance, courts should recognize the humanism of legal dilemmas and focus on it. That is, every case in court has a human heart. A value against lying, cheating, stealing, violence or what have you is in play and the fate of real people are on the line. When the parties’ claims and not the process is the focus, courts can push aside obstacles and achieve substantial justice. Parties can be ordered to make all their legal challenges to a case at the same time to keep them from dribbling out and causing long delays. Judge McAfee should have ruled on whether a hypothetical relationship between prosecutors would have anything to do with Donald Trump before allowing a circus about it. The upper courts should see Donald Trump coming and rule fairly and quickly on his claims in New York. The courts should try Trump’s attempted takedown of democracy before they put on a show about a payoff to a porn star.
American courts are in the spotlight. Trump’s opponents can be grateful that he may face justice someday, but not one of the cases against him will be over before the election.
