• Show Notes

Dear Reader,

Let’s start with the bottom-line, brass-tacks question that’s surely on your mind. Now that the Supreme Court will hear Donald Trump’s immunity argument, what are the chances the former president will face trial on Jack Smith’s 2020 election subversion case before the 2024 election? 

Your answer: vanishingly slim, but not quite none.  

Let’s play out the timeline. The Court has set a moderately expedited briefing schedule that will culminate in oral arguments during the week of April 22. Here’s how an optimistic (from Jack Smith’s perspective) fast-track scenario might play out:

– Early-to-mid June: Justices deliver their ruling, rejecting Trump’s immunity claim.

– Late June: Supreme Court issues the mandate, which officially sends the case back down to the trial court.

– Early-to-mid August: Trial begins and lasts six to eight weeks. 

– Early October: Verdict.

This is the outlook if everything breaks Smith’s way. But a thousand things could throw it off. The Supreme Court might not rule until the very end of its current term, which will carry into late June or early July. The justices might not issue a final ruling at all, and could instead send the case back down to the trial court to determine whether Trump acted within the scope of his job as president. District Court Judge Tanya Chutkan might decline to set a trial date that would overlap the final stages of the general election campaign and culminate in a verdict potentially within weeks of the election. Trump’s other federal case, the Mar-A-Lago classified documents matter, could get pushed back from its current late-May trial date to July or August, which would effectively block the election subversion case altogether.

Trump likely will still face at least one trial before the election, but it’s probably not going to be The Big One in DC. It’s now all but certain that the Manhattan DA’s indictment of Trump for falsifying business records around hush money payments to Stormy Daniels will begin later this month, on March 25. But that case involves a paperwork offense committed eight years ago, which the feds previously declined to charge. Trump might well get convicted – most criminal defendants lose at trial, and a Manhattan jury will be decidedly hostile – but he likely won’t face jail time, and it’s questionable whether the verdict will have substantial political impact on undecided or swing voters. The Mar-A-Lago classified documents case might happen as well, but the judge has signaled willingness to move it back, perhaps past the election. The Fulton County District Attorney’s case has no set trial date, and zero chance of happening before the end of 2024. 

We’ve seen widespread consternation directed at the Supreme Court for its decision to grant certiorari (to take the case, that is) on Trump’s immunity claim. No doubt, this development vastly improves the former president’s chances of avoiding trial until after the election. But it’s wrong to attribute the Court’s decision to nefarious intent or some grand plan to help Trump skirt the law. 

Let’s be clear here: on the whole, this case is proceeding on a normal (or, if anything, expedited) timeline. Smith filed his indictment in August 2023, and it’s exceedingly rare for a federal indictment of this scope and complexity – with discovery including over 13 million pages of documents and thousands of hours of video – to get to trial in less than a year and a half. And it’s fast, if anything, for the Court to grant certiorari within three weeks of filing of a petition, and then to hear oral arguments less than two months later; CNN’s Supreme Court expert, Joan Biskupic, notes that “[o]verall, the timetable is fast compared to the regular calendar for high court briefing.” If there was no election around the corner, nobody would raise an eyebrow at the pace of this case, or the Court’s decision to take it. No doubt, the Court has declined to expedite the case to Smith’s liking – but that’s not the same as delaying it. 

It requires a combination of armchair psychology and conclusory narrative generation to argue that the Court somehow wanted to do Trump a solid, and decided to take the immunity case just to prevent a pre-election trial. The justices all have life tenure, of course, and they don’t owe Trump a thing; I suspect that, if anything, they all see him fundamentally as a clown (except maybe Clarence Thomas, he might be genuinely enamored). There’s nothing Trump can do to help or hurt any of them, even if he’s re-elected. And this same Court has famously rejected many cases to Trump’s personal and political detriment – including his bogus challenges to the 2020 election – often to gleeful cheers about how “Trump’s own judges” turned on him.  

So who gets the blame here, if the trial slips past the election? Trump’s the defendant – the one whose personal liberty is at stake, who might die behind bars if he loses – and he’s absolutely entitled to defend himself zealously. Any marginally competent defense lawyer on the planet would raise the immunity argument, and would aim to get the trial moved until after the election. This isn’t about laying down to appease the political wishes of some broad swath of the general populace; this is bloodsport, with Trump’s hide on the line, and this is how the game is played. If you want to cast blame, look across the courtroom at the Justice Department. They’re the ones who controlled the timeline yet dithered away more than two-and-a-half years before indicting, leaving virtually no margin for error to get the case tried before November 2024.      

As for the justices, they have every right – responsibility, even – to rule on the immunity issue. This case is why we have a Supreme Court in the first place. It raises unresolved issues of enormous consequence that implicate the scope of executive powers and separation of powers; it’s tough to come up with a more obvious textbook example of a Supreme Court-bound case. As one skilled practitioner recently insisted: “given the weighty and consequential character of the constitutional questions at stake, only this Court can provide the definitive and final resolution of respondent’s immunity claims that this case demands.” Know who said that? Jack Smith, back in December, when he was begging the Supreme Court to take the case.

Smith is, of course, obsessed with trying this case before the election – though he’ll never acknowledge that obvious truth, because it flagrantly violates DOJ practice and principle to act with an election in mind. I’m not referencing the oft-misunderstood “60-day rule” here; that guidance against taking investigative steps close to an election doesn’t strictly apply to trials, where timing is often out of the prosecutor’s hands. I’m talking about the explicit DOJ internal policy that “Federal prosecutors and agents may never select the timing of any action… for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” I’ll hear an argument that Smith should push Trump to trial before the election because voters need to know if Trump is guilty before they vote. But that position simply cannot be squared with the Justice Department’s explicit policy against taking electoral considerations into account.  

Smith has gotten lucky so far, as he’s caught judges in the lower courts who are on board with his lust for speed. Judge Chutkan and three court of appeals judges all bent normal federal practice to give Smith his super-expedited schedule, with an eye towards jamming home a trial before November. 

But the Supreme Court doesn’t give a crap about Smith’s need for speed, or about whether this case gets tried before or after the election. And why should they? Is it rightly the job of any federal judge to worry about whether a case gets tried before an election? Isn’t it inherently political – and inappropriately so –  to do that? 

Think about it like this: If the argument is that judges should consider whether a case ought to be tried before or after an election – which way should they construe that? The way you or I might want it to come out? Because while many folks (understandably) want the case tried before the election, plenty of others don’t. So what’s a judge to do? Pull one way, or the other? Follow her own political wishes or personal preferences? Or just play it straight, like any other case, and let the cards fall as they will? 

The Supreme Court has done just that here. And while the result may be disappointing to many – heck, I’d like to see Trump tried before the election, too – it’s also the only proper way for judges to do their jobs. 

Stay Informed,