Resolute Square

It’s Not About Delay. It’s About Obstruction And Destruction.

Trump isn't attempting to delay criminal investigations into his conduct, writes Teri Kanefield; he's working to derail and destroy them. People praising his successful "delay tactics" are missing that in Court, as in the 2020 election, he is a loser.
Credit: The White House WC
Published:March 27, 2023

*Published with the generous permission of Teri Kanefield. Read all of her writing here.

By Teri Kanefield

Please excuse me while I have a mini-rant.

Occasionally mainstream and social media commentators settle on a theory that projects their own reasoning onto Trump and his supporters. For example, at one time, the going theory was that Lindsay Graham was kissing Trump’s ring because Trump was blackmailing him. It was common for people to ask, “What does Trump have on him?”

At the time, I insisted he was not being blackmailed: Lindsay Graham was kissing Trump’s ring because Trump is a reactionary and Graham is a reactionary, and Graham likes what Trump stands for.

People argued: “But remember how Lindsay Graham was initially opposed to Trump, then he went golfing with Trump and changed his mind?” What could have caused him to change his mind, people wondered, other than blackmail?

The whole blackmail theory gave Graham too much credit. People assumed that without the blackmail, Graham would have done the right thing and denounced Trump. The blackmail theorists were projecting their own values onto Lindsay Graham.

What happened was simpler: Initially, Lindsay Graham thought Trump would lose. As Graham famously said in 2016:

He didn’t think the country would elect an avowed white supremacist. The Republicans were accustomed to using dog whistles, and Trump was coming right out with racist remarks. When Trump persuaded Graham that he could win, Graham fell in line. Once Trump assumed office, Graham became a devoted follower because that’s what people with authoritarian personalities do. They worship their leaders.

The latest theory is that the goal of Trump’s shenanigans with these criminal probes is to delay. To take a few recent examples, a well-known ethics lawyer who I highly respect said, “Trump has had remarkable success with delay and evasion tactics.” Another of my faves, a legal commentator, said, “Judges can see through Trump’s delay game.”

Here is the Oxford Dictionary‘s definition of delay:

To make something late or slow. The train was delayed. To postpone or defer.

Here is the definition of obstruction:

A block; to be in the way or get in the way of, to prevent or hinder.
The goal of delay is to postpone the train. The goal of obstruction is to derail the train. I maintain that Trump is not trying to delay. He is trying to derail.

Example: Trump’s Special Master lawsuit

Trump repeatedly refused to turn over government records he had taken from the White House even after a criminal probe began. After the government searched his premises and seized the government documents, he filed his lawsuit demanding a special master to force the government to give the documents back to him.

He argued that he had the right to possess those documents. He argued that they were his personal property. He argued that at any time, he could declassify top secret documents and convert them to his own personal property, therefore, the government had no right to search his premises and seize the documents.

Had he succeeded, the government would have had to return the documents to Trump and would not have been able to charge him with a crime.

He lost. Within a few weeks, the court allowed the DOJ to continue its investigation into the classified documents, and within two months, the appellate court bounced the entire case out of court.

  • The chorus on social media: “His delay tactic worked! He managed a delay!”

My theory: He thought he would win. He thought he had the right to take and keep the documents and that the government had no authority to seize the documents or prosecute him for taking them. He thought he could torpedo the entire investigation.

  • Me: “His attempt to obstruct the investigation failed.”

But Teri! Why does it matter whether we say ‘delay’ or ‘obstruct’? 

Accuracy and precision with language matter. Using the wrong word conveys the wrong ideas. If you think Trump’s object is to delay, he “wins” every time he files a court document. If he’s trying to derail things, he keeps losing. There is a big difference between winning and losing.

Before law school, I taught college English. One day I was teaching a basic English class at the University of California, Davis. A student raised her hand and asked, “But why does it matter which word we use?”

I threw a nutty. (The students were always amused when I threw nutties.) Me: “Wars have been fought over which word was used! The course of history can be changed depending on which word is used!” I went on like that. You get the idea.

Mark Twain said that the difference between the right word and the almost-right word is the difference between lightning and a lightning bug. In this case, it is the difference between labeling Trump a loser or admiring his winning abilities.

Example: Trump’s claims Attorney-Client Privilege

This week Donald Trump received a bit of a shock. He said this:

You know, I always used to think that attorneys really had a very high status in life that when you had an attorney, the attorneys can’t be subpoenaed. They can’t be summoned to talk.

Evidently, nobody ever told Trump about the crime-fraud exception. Now he knows. Here is what happened this week:

  • DOJ prosecutors subpoenaed Trump’s lawyers, Evan Corcoran and Jennifer Little, to testify in the stolen documents case.

  • Trump claimed attorney-client privilege to prevent them from testifying. Evidently, he thought this would work.

  • The prosecution presented evidence that Trump lied to his lawyers about the documents, which is hugely important and helps clinch the case that Trump deliberately stole the documents.

  • We also learned that there is documentary evidence that Trump lied to his lawyers.

  • Trump did not want this evidence to fall into the hands of prosecutors.

  • A federal judge found that Trump’s communication with his attorneys was part of an ongoing crime; therefore, the crime-fraud exception applies; therefore, Trump cannot claim attorney-client privilege–and therefore, the prosecution can get the testimony and documentary evidence.

  • Trump appealed on Wednesday.

  • The court set an expedited schedule: By midnight on Wednesday, Trump had to file a document with the court listing which documents were at issue. By 6 AM, the government had to file its response.

  • On Thursday afternoon, the appellate court ruled against Trump. The appellate court ordered the lawyers to testify and turn over the documentary evidence.

  • On Friday, Corcoran testified before the grand jury.

Chorus: Trump managed to get a delay. The delay was short because courts are getting tired of Trump’s delay games.

Me: Trump lost his bid to prevent his lawyers from testifying and turning over documents. The turnaround was fast because the courts are getting tired of his attempts to obstruct and derail these proceedings.

Trump lost with his executive privilege claims

We also found out that Trump tried to prevent Mark Meadows and others from testifying in the probe into the January 6 attack by claiming executive privilege. He lost that one as well.

This week there were also court proceedings about whether Pence would have to testify. We don’t have an answer about Pence, but given Trump’s track record, we can expect Trump to lose on that one, too.

Pence and Meadows are key witnesses to Trump’s attempt to incite an insurrection. Trump is trying to keep them from testifying.

Trump Tries to Derail the Prosecution in Georgia

On Tuesday, Trump filed a motion in Fulton County demanding that the grand jury report not be made public (as the law allows) and that prosecutor Fani Willis be recused.

Without going into the problems with his motion, the reason to file it now (when it is clearly premature, and I don’t see how he’d even have standing) is to prevent the public from finding out what is in the report and to get rid of the prosecutor before she can file charges.

Trump Sent Costello as a Witness in the Manhattan Grand Jury

Last week, Trump was offered an opportunity to speak to the Manhattan grand jury. (This means that the grand jury is wrapping up its case and getting ready to decide whether to bring charges.)

Trump declined to appear. Instead, he sent one of his lawyers, Robert Costello, as a witness. It was clear from both Trump and Costello’s statements that Trump believed that the Manhattan case against him was based on Michael Cohen’s word. Trump and Costello evidently believed Costello’s testimony would undermine Cohen’s testimony and thus derail an indictment.

Cohen was asked to stand by as a possible rebuttal witness. The prosecution decided not to call Cohen, which leads to the obvious conclusion that Costello’s testimony was not as compelling as he believed it was and that he did not manage to derail the investigation.

Notice: This week, Trump tried to derail all four investigations:

  • The DOJ stolen documents case (by keeping Corcoran and Little from testifying and turning over documents).

  • the DOJ January 6 investigation (by keeping Meadows and Pence from testifying)

  • The Georgia investigation (by demanding that Fani Willis recuse herself)

  • The Manhattan investigation (by sending in Costello)

He’s like the boy with his fingers in the dike trying to plug up four leaks.
How did Trump respond when he failed to derail these investigations? By calling for violence.

On his Truth Social account, Trump made racist slurs against Bragg and encouraged his supporters to attack Bragg.

Bragg responded with an internal memo stating that his office will not be intimidated.

Trump then increased the fervor of his calls for violence, including showing himself holding a baseball bat not far from Bragg’s head. Bragg indeed received a death threat and an unidentified white substance.

For reasons that I will leave to the psychologists, Trump apparently thinks that he can strong-arm his way out of trouble. He seems to believe if he incites violence, one of two things will happen: he will emerge the victor, or the country will be destroyed.

Evidently, he thinks either of those options is better than facing indictment.

As the week went on, Trump’s calls to violence increased in fervor. On Friday, Trump warned of potential “death and destruction” if he is indicted.

He held a rally on Saturday in Waco, Texas, a place that obviously “carries great symbolic value to anti-government extremists and conspiracists.” During his rally, he said, “Either the deep state destroys America or we destroy the deep state.”

These are not the words of someone who wants to delay the filing of an indictment or delay his trial. These are the words of someone who would rather destroy the country than see an indictment brought against him. These are the words of someone looking to the most extreme elements of his base to come to his aid.

Will they come to his aid? While incapacitation as a theory of criminal punishment works only temporarily–prison sentences are limited, and inmates often grow more hardened–as timing has it, the most dangerous militia leaders who might have answered Trump’s call are currently on trial or in jail for the role they played in the insurrection.

People who assume that Trump is trying to delay instead of destroy are giving Trump way too much credit. “Well, if I were Trump, I would just try to delay things so that my trial landed after I was the Republican nominee,” they think, and project their normalcy onto Trump. That might be how a normal person thinks—but a normal person does not threaten a prosecutor with violence.

Trump is not talking like someone who visualizes himself sitting quietly at the defendant’s table in a criminal courtroom at any time in the future. He’s talking like someone who imagines the courthouse burning down.

Someone said, “While being arrested is a humbling experience, there’s probably no better way for the Trump campaign to move into overdrive. You couldn’t ask for a better gift if you understand how to take advantage of it. And Trump is surrounded by people who know how to do it.”
Some reporting suggested that Trump relishes the chance to do a perp walk.

I call malarky. If Trump is cool with being indicted, why is he doing everything he can to derail the indictments?

Strongmen don’t like to lose. They like to flex their muscles and show that they are strong. Trump is fighting because that’s what wanna-be dictators do. When they act tough, their supporters cheer.

Trump wants his supporters to cheer. It’s really that simple. Trump wants to be labeled a winner, and everyone who characterizes his constant losses in court as victories is helping him.

Someone on Mastodon asked me this:

But surely he benefits from these delays, right?

Wrong! When he delays civil proceedings, he may have to pay less money. Also, it’s always better to pay later than now. But criminal matters are different. Threatening prosecutors with violence makes things worse. Antagonizing prosecutors makes things worse.

He’s accustomed to civil cases, where long delays are possible, and he’s (theoretically) on equal footing with his opponents because civil cases are citizen v. citizen.

Criminal cases are the government against the individual. The government has the power. Individuals have constitutional protections because the government has the power.

Trump doesn’t see or accept the inherent power imbalance right now. Antagonizing prosecutors when you are under investigation is stupid.  It’s like spitting into the wind or pulling the mask off the old lone ranger

Had Trump cooperated in the documents case, he probably wouldn’t be facing indictment. But he didn’t cooperate because he can’t cooperate (again, I will leave the reasons to the psychologists).

One person on Mastodon told me this:

  • The prosecutors are so terrified of screwing up the cases they are bringing the delays themselves.

I was sort of flummoxed by that comment. The idea seems to be “if an indictment hasn’t happened yet, it must be because someone is creating delays.”

All of the “delay” comments appear to be motivated by frustration that there are still no indictments. I might feel frustrated at 5:00 am that the sun hasn’t yet risen, but that doesn’t mean the sunrise has been delayed.

In an instant gratification world, people seem to think that anything that takes time must be flawed.

Enough talk about Strong Men. Here is what a Strong Dog looks like

Image #1: JJ making sure no ground animals entered our backyard. He stepped in front of the light.

Image #2: JJ’s shadow on the garage, capturing how he sees himself (and probably, how the ground animals see him.)