Dear Reader,
Now that Donald Trump has been indicted – and may soon catch another case – we turn to this important question: when will he actually stand trial?
Let’s do some rough calendar math. At Trump’s arraignment earlier this month in Manhattan, the judge set the parties’ next in-person court appearance for December 2023. That’s not a typo; I do mean December – the month when snow falls and Christmas happens, eight months from now. (No, this is not normal. I never had a case, or heard of one, where the second appearance was so long after the first.)
So there’s no chance a Trump trial happens in New York until at least 2024. Even in a best-case scenario, the parties will request and receive at least a few months to prepare for trial. That pushes us into spring or summer 2024 – right in the heart of the next presidential election process, as primaries and debates and conventions unfold.
There’s no formal legal prohibition on trying a presidential candidate, even during the peak of election season. But let’s look at this realistically. Recent polls show that Trump holds a commanding (and growing) lead over the GOP field, and you can feel him putting the crush on the suddenly sad-sack Governor of Florida, Ron DeSantis. It seems increasingly likely that no Republican will be able to knock Trump off.
So by early- or mid- 2024, Trump will likely be either the Republican frontrunner or perhaps even the presumptive nominee. Given that reality, will a judge decide to hold a Trump trial – which could result in his conviction and imprisonment – right at that moment, at the heart of the campaign? The easy call for any judge is to simply put everything off until after the 2024 election, when the politics clear a bit (more on that in a moment). And if a judge does try to hold a trial next year, during election season, the potential complications are dizzying:
– How do you pick a jury? (They’d manage – our jury selection system is designed to weed out unduly biased jurors, and it has worked fine in prior high-profile cases – but the process would be extraordinarily complicated, given Trump’s public profile, set against the backdrop of an ongoing presidential election.)
– Would Trump have to skip out on major campaign events that conflicted with the trial schedule? (I know, a criminal trial takes precedence over politics – I’m with you – but I also don’t see a judge being eager for the appearance of pulling a candidate off the trail.)
– Would a mid-2024 trial play right into the hands of Trump and his supporters, who will claim that elected, local Democratic prosecutors sat on their hands and delayed for several years before bringing charges, ensuring that any trial would land right at the worst possible political moment for Trump? (Like it or not, and true or not: yes.)
– Perhaps most consequentially, how might a fast-approaching election influence the verdict? I can see jurors who hate Trump being more eager to convict him in hopes of knocking him off his political stride. A Trump fan on the jury, by contrast, would probably be even more likely than otherwise to hold out and refuse to convict, for fear of harming his political standing. Most importantly: might a middle-of-the-road juror hesitate to convict a person who could be on the brink of taking the White House? Can’t you see a juror thinking to herself, “I’m not a fan of this guy, and he’s probably guilty, but how are we going to lock up the person who might well become president in a few months?” If one juror hesitates based on this perfectly rational concern, then prosecutors will have a problem.
The Manhattan DA charged Trump first, but his office won’t necessarily get to trial first. Every case will proceed on its own timeline. If Fulton County District Attorney Fani Willis indicts Trump soon – and she has all but broadcast her intent to charge him this summer – then she could jump the line. But, if anything, the Fulton County case seems to have an even longer road to trial than the Manhattan case. All indications are that Georgia intends to bring a sprawling, complex case that will require extensive discovery and motions, plus a long trial. And Trump surely will seek to remove any Georgia indictment to federal court, arguing that he is immune from state or local prosecution for charges based on conduct related to his federal office. He might not win on such an immunity claim, but litigation (including appeals) will take months.
And then there’s the Justice Department. Special Counsel Jack Smith has certainly picked up the pace and intensity of the investigations since he took over from the myopic, meandering Merrick Garland. But Smith still has important work to do – he needs to take testimony from Mike Pence and Mark Meadows, for example – and even when he’s done, he’ll need Garland’s sign-off before he can actually bring charges.
Even if Willis or DOJ jumps ahead of the Manhattan DA, it’s nearly impossible to see any trial happening before 2024. And that brings us right back to the same political conundrum posed by a criminal trial of a leading major-party candidate, held during presidential election season.
If Trump somehow manages to push all of his potential trials out until after the election, how do the cases play out from there? If Trump wins and re-takes the White House, forget about it. There’s no law specifically prohibiting the trial of a sitting president, though DOJ policy against indicting a sitting president would also seem to preclude an actual trial (and potential imprisonment) on the federal level. And while a state judge in New York or Georgia could attempt to hold a trial of a sitting president, count me highly skeptical this would actually happen, legally or politically. So in this scenario, everything gets put on hold until – brace yourself – January 2029, when Trump’s (hypothetical) second term would end.
Then there’s the possibility that Trump wins the Republican nomination and loses the 2024 general election. In that scenario, we’re looking at trials in 2025. By that point, Trump will be a 78-year-old, twice-defeated presidential candidate whose political career is over. The charged conduct will feel ancient; the Stormy Daniels hush money payments, for example, will be nearly a decade old, made three presidential administrations prior. And, in any trial scenario of Trump, you have to tack on at least a year for post-trial appeals – to the intermediate appeals courts and potentially the state and federal supreme courts. Trump still might be convicted, but we’ll be living out a scenario that proves the old adage about justice delayed and denied.
I’m going to be a broken record for a moment here and call out all three prosecutors for taking so damn long. You’re well familiar by now with my beef against Garland; I excoriated him for dragging his feet in this space, nearly a year ago. Willis deserves the same critique. She has actually been in office longer than Garland, and the key piece of evidence – Trump’s infamous phone call to Georgia Secretary of State Brad Raffensperger – has been in the public domain since before the January 6 attacks. And I’ve not yet seen a convincing explanation for why Manhattan DA Alvin Bragg (a friend and former SDNY colleague of mine) would charge Trump over the hush money payments nearly seven years after they happened. Yes, as Bragg’s defenders frequently note, the SDNY asked the Manhattan DA to “stand down” at one point in 2018. But that only accounts for about a year of delay – until about 2019, when the SDNY publicly declared that its investigation was done – during a time when Trump couldn’t be indicted anyway because he was president. Another two-plus years have passed since Trump left office, with no action until earlier this month.
We are headed towards a remarkable and unprecedented confluence – collision, perhaps – between law and politics. The Trump criminal cases will play out right on top of the 2024 election process. There are no easy answers here. Any conceivable scenario presents major drawbacks. Make no mistake: Trump is responsible for compelling us to grapple with his misdeeds. But prosecutors also bear blame for dragging their feet and forcing us to do that at the worst possible time.
Stay Informed,
Elie
