An MSN opinion-editorial “How Judge Aileen Cannon once again ruled in Trump’s favor” written by former Connecticut Family Court Judge Thomas G. Moukawsher discusses Trump’s trial of alleged mishandled classified documents at his Florida home.
Moukawsher claims:
Trump’s strategy is to delay his trials past the 2024 election. Trump’s lawyers use delay tactics by:
filing motions,
challenging jurisdiction,
challenging the legal interest of the plaintiffs,
attack the legality of the prosecution’s claims
appealing the trial judge’s decisions
Moukawsher suggests the Judge Canon should combat these defense strategies by:
Managing the flow of motions by combining them
Taking charge of the discovery process.
Recognize defense efforts as delay tactics and seeing things up.
Moukawsher writes:
The first way to delay a case is to drop a hailstorm of motions. First, you challenge where the lawsuit is located. For instance, Trump has claimed his election fraud case should be moved out of Washington, DC, because he can’t get a fair trial there. Next, you attack the people suing, claiming they have no recognized legal interest at stake. Trump just attacked the election fraud case on this ground. Next, you attack the way the claim was drafted. It’s defective and should be dismissed. Trump is using that one in DC and in Georgia, too….
[E]ach motion can take months to resolve….
Trump can keep the cases marching in place… until after the 2024 election….
What’s more, Trump can use the number of pending motions to justify motions that he needs more time. That’s the thing Cannon just fell for: You create work and then complain about the volume of it.
Moukaswher has a remedy:
A judge [can combine] challenges on the legal sufficiency of the claims, attempts to move the case and efforts to change the trial date….
Compressing pre-trial motions just takes care of the first wave of delay tactics.
The longest part of lawsuits is often the exchange of evidence between the two sides — what’s known as the discovery process. Both sides demand documents from the other side. The other sides object. They take the matter to court. And so on. There are always more documents, so there are always more opportunities for motions.
To slay the discovery beast, judges should take charge of the process…. Since most of the documents and witnesses the parties will require are obvious, the judge should… simply issue a court order listing the documents that must be exchanged between the parties within 30 days and ….what depositions of witnesses are allowed within 60 days…
In particularly complex cases, the judge can schedule a couple hours each week to ride herd on the evidence gathering process, hearing and resolving the parties’ claims from the bench on a single day instead of waiting weeks or months after a hearing to decide them…
Trump’s strongest timeout card is… an appeal. It used to be that you would appeal after you lost a case in the trial court. But the new rules of asymmetrical court warfare say you appeal every major ruling at every point in the proceedings. No one can stop him from appealing unfavorable final results. Normally this appeal process would buy Trump years — until long after the 2024 presidential election. But it doesn’t have to be this way. When the national interest is at stake, appeals courts should simply expedite the appeals by hopscotching other cases on their dockets…..
Moukawsher’s viewpoint reveals a disregard for due process and constitutional rights.
Motions and challenges are not mere delay tactics, but elements of the constitutional right for a defendant to attack overreaching or flawed prosecutions.
Moukawsher’s oversimplification of labeling legitimate legal maneuvers as tactics to stall proceedings fails to recognize the decisions lawyers make to win the case for the defendant – just as the prosecution, which has many inherent advantages, seeks to win its case.
Moukawsher’s suggestions to combine motions, and take control of the discovery process, reflect an enormous misunderstanding of judicial responsibilities in an adversarial system where a defendant’s liberty is on the line.
The parties have the right to present their case as they see fit. Moukawsher’s proposal to have judges dictate the exchange of documents in discovery fails to consider the complexity and nuance involved in litigation. A judge cannot predetermined the discovery process at the beginning of a case.
Another point that rises to the absurd is when Moukawsher calls appeals a delay tactic. Appeals provide a mechanism to rectify errors or injustices in lower court decisions. Suggesting that some appeals should be expedited by hopscotching over others would simply expedite some cases and delay others, and is not unfair and impartial justice.
I understand. Moukawsher wants Trump to lose, and go to prison. Lots of people do. I can imagine Moukawsher can see himself on the bench during a Trump trial, deciding the sentence first, and doing the trial afterwards. In this, he reminisces of his days as a family court judge, where there was no jury and little due process.
In family court, judges often decide which party should win and which will lose before the trial. He didn’t need a trial. He made his decision in advance. Discovery and motions were unnecessary. Appeals are merely a joke.
It doesn’t work that way outside of family court. In fact it shouldn’t work that way in family court but always will until family court tempers judge’s unbridled power with a jury.
