ANALYSIS: Trump Tests Judge by Asking for Small Delay

Former President Donald Trump speaks to members of the Alabama GOP during their summer meeting in Montgomery, Ala., on Aug. 4, 2023. Julie Bennett/Getty Images

The legal team of former President Donald Trump appears to be testing the judge presiding over the case involving his effort to reverse the results of the 2020 election.

On Aug. 7, District Judge Tanya Chutkan ordered the prosecutors and the defendant to offer her two dates for a hearing on a gag order the prosecutors have asked for. She wanted the hearing on or before Aug. 11, but President Trump asked for Aug. 14 or 15 so he can have both his lawyers present, citing a scheduling conflict with the case he’s battling in Florida (pdf).

It’s common for judges to work out scheduling issues with lawyers, but here the request may serve as a litmus test for the judge’s bias, according to a legal analyst that goes by the moniker “Techno Fog” on X, the platform formerly known as Twitter.

“The Monday or Tuesday (August 14 or 15) hearing dates proposed by Trump’s attorneys are reasonable, considering the short notice the court has provided, the fact that they'd have to travel to D.C., and their scheduling conflicts from Trump’s Southern District of Florida case. ... This is a very new case and the Judge’s decision to rush the hearing makes little sense,” the analyst told The Epoch Times.

“One potential strategy behind the filing may be that they get to test the Judge’s fairness to Trump.”

Asking for a delay, albeit a short one, holds special significance in the case of Mr. Trump, who is far and away the frontrunner for the GOP presidential nomination, because it may be in his interest to delay the resolution of the case beyond the 2024 election.

Judge Chutkan may thus feel pressure to deny any delays to avoid being criticized for playing into Mr. Trump’s strategy.

The case, however, can easily involve millions of documents and may take years to resolve. By denying small delays at the onset, the judge may be building a bias case against herself, according to defense lawyer and former federal prosecutor William Shipley.

Mr. Trump’s lawyers have already zeroed in on the issue.

In an Aug. 7 response to the prosecutors’ gag order request, the lawyers noted that the judge only gave them three days to respond, including the weekend, when the regular rule in D.C. courts is 14 days.

“Without doubt, the Court’s decision to vary from the default Local Rules and allow President Trump less than one business day to respond to this important Motion is a concerning development, inconsistent with his due process rights,” the court filing says, asking the judge to provide the regular 14 days in the future.

The prosecutors asked for a protective order on Aug. 4 that would prevent Mr. Trump from disclosing information he’s going to learn as the prosecutors provide him evidence they hold against him as well as exculpatory information in the government’s possession.

“Such a restriction is particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him,” the prosecutors wrote in their motion, citing a post Mr. Trump made on Truth Social that read, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

Mr. Trump’s lawyers explained in their response that the social media comment was targeted at some of the 45th president’s political opponents within his own party and that his campaign already clarified the issue.

They acknowledged that a protective order is warranted to prevent disclosure of grand jury testimony and other “sensitive” information, but opposed a blanket protective order that would also prevent disclosure of non-sensitive information.

“It is axiomatic that the government’s claimed need to protect ‘highly sensitive categories of material’ cannot support restrictions on non-sensitive materials,” the document says (pdf).

The case was brought on Aug. 1 by special counsel Jack Smith, who alleged a conspiracy to “impair, obstruct, and defeat” the collection and counting of electoral votes; conspiracy against Americans’ right to vote; obstruction of the electoral vote counting by Congress; and conspiracy to obstruct the electoral vote counting (pdf).

The allegations posit that Mr. Trump didn’t genuinely believe that victory in the election was unlawfully taken from him and his attempts to reverse the results were thus fraudulent and corrupt.