Newsweek: Donald Trump’s Fraud Case is Far from Over


Donald Trump’s Fraud Case in New York Is Far from Over | Opinion

By Thomas G. Moukawsher

Retired Judge and Author

The New York Supreme Court decision in former President Donald Trump‘s fraud trial will show that American justice is real—and real slow.

Yes, Justice Arthur Engoron‘s decision will show that no one is above the law. But the case is about to show us something else too—how needless delays will mean that Trump will face no consequences until long after the election. Trump is a master at manipulating the legal system and will doubtless seek to jam its gears in the hope that his election will somehow save him.

Of course, Trump has a right to file an appeal of the Justice’s ruling. Review on appeal is fundamental to a fair handling of his case. But it can easily take many ears. Here’s how.

Nominally, Trump has 30 days from the entry of the judgment against him to appeal the ruling. But Trump also has 30 days to ask Engoron to reconsider his ruling. In some courts, you can file multiple motions like these in a series. They stop the clock ticking on the deadline to appeal. A skillful lawyer can drag this pre-appeal process out for months and sometimes years. They start by filing a motion and then seeking extended time to file their briefs. They encourage lawyers for the other side to seek extra time. They seek permission to file additional briefs. They drag their feet about arguing the motions. They insist they should call witnesses even when the trial is over. They might reopen attacks on the judge, the witnesses, or the government, claiming new information and the like. A judge must be mighty fleet of foot to stamp out all these little fires lit under his ruling. Finally, after months or years, the appeal gets filed.

And then it starts all over again. Motions to extend deadlines fall like snowflakes. Transcripts must be ordered. Preparing them can take months. Briefing schedules will be fought over. Extension requests will be filed. When the deadlines start to heave into view another favorite tactic is to agree to mediate. Further deadline extensions can be sought based on the mediation. Finally, it will emerge that—despite every hope—the negotiations have a collapsed. A new deadline will emerge and finally the matter will be briefed and—after attempts to reschedule—the matter will be argued in front of the Appellate Division of New York. That court will then take many months—often years—to issue a written decision. If Trump doesn’t like it, he will ask the full court to reconsider it. He just did that after losing his bid for immunity in the D.C. Circuit Court of Appeals. Briefing this issue and obtaining a ruling can devour more months if treated as routine. Then let’s say, Trump still loses.

Sorry, but the case still isn’t over. Trump can then petition the New York Court of Appeals to take up the case. This eats up more months. If the high court agrees to hear the case, the whole merry-go-round starts over. Let’s say he loses again, and—after some additional time—the U.S. Supreme Court refuses to hear the case.

If it does, the case only ends up back where it started from because likely the liquidation of Trump’s holdings will be complicated or made to seem so. Implementation orders are made—and yes—they will likely be appealed. And so, it goes.

Finally, after the 2024 election is long over—likely after the next four-year presidential term of office, Trump’s chickens will come home to roost. And then he and his organizations will file bankruptcy. A whole new lawsuit kicks into gear and Trump holds off the full weight of what he faces until, somewhere in his late 80s or 90s, he will either pass away or pass into irrelevance.

The only way to stop this is for courts to stop doing business as usual. Courts can tightly control what gets filed when. They can control what gets decided and when. Too often they leave the preliminaries to lawyers and accept delays as normal. Trump’s cases aren’t the only ones withering on the vine. Until courts learn better case management techniques, Trump and other litigants who know time is on their side will win even when they lose.

Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.

The views expressed in this article are the writer’s own.

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