Dear Reader,

Anyone who has tried to put a toddler to bed understands the exasperating, charming, inevitably futile nature of the exercise. Every night as a parent, you resolve: tonight, we’re enforcing the routine, no dragging it out. Every night, you fail. There’s always one more book, one more question about life, one more trip to the bathroom. About a decade and a half ago, when my son was that age, we nicknamed him “Tom DeLay,” after the then-prominent Congressman from Texas, for the pun of the last name rather than the policy positions: “Oh great, Representative DeLay says he needs more water in his sippy cup before bed.” (If you’re wondering whether this is what passes for humor in my house: yes, it is.)

I had a flashback recently when my four-year old nephew stayed over. He was masterfully pulling all the levers, each time teed up with an irresistible, “One more thing?” Every time, we’d agree: one more game, one more story, and so on. Finally we said, “Okay, one last one more thing.” He thought for a moment and made his ask: “A movie?” Shoot your shot, kid.

In many ways, putting a toddler to bed on time is like trying to hold the line on a trial date when a defendant wants to, well, DeLay. (Sorry.) Just as it’s frustratingly easy for a kid to drag out his bedtime, so too can any half-skilled defense lawyer find some justification for postponement of a trial date. We need more time to review discovery. We need an extension to file motions. A key witness got sick. One more thing.

When Judge Aileen Cannon set a late-May 2024 start date for the Justice Department’s trial of Donald Trump for mishandling sensitive documents and obstruction, it was technically a split decision of sorts. Special Counsel Jack Smith had requested a December 2023 trial; Trump’s team countered by asking for a trial date in, well, never – or at least some unspecified time after the November 2024 election. On the surface, May 2024 might seem like a midpoint. But any seasoned prosecutor can see the writing on the wall and, I assure you, Trump’s team was high-fiving when the ruling came down. As the deeply-experienced criminal defense lawyer Shan Wu said recently in a segment we shared on CNN, “I could get that date adjourned in my sleep.”

Indeed, Trump’s team will have plenty of opportunities for strategic foot-dragging. Judge Cannon’s order lists 33 intermediate deadlines – relating to handling of classified documents, discovery, motions, and other pre-trial processes – between now and the trial date. If and when any of those dates gets pushed back, then everything behind it slides as well. And while Judge Cannon’s schedule is detailed and clearly delineated, it’s easy to see where some deadlines are more aspirational than practical.

For example, Judge Cannon gives the parties about five total weeks, from early November until mid-December 2023, to brief and litigate motions. Trump surely will challenge the constitutionality of DOJ’s search of Mar-A-Lago; he’ll contest the grand jury’s piercing of the attorney-client privilege and seek to exclude evidence of his communications with his lawyers; he’ll allege prosecutorial misconduct; and he’ll argue that the special counsel law itself is unconstitutional. These motions vary in their merits (tending towards the thinner side), but they’re all complex, and may require evidentiary hearings. I see no way they get briefed, argued, and resolved in just over a month. And if Trump manages to get any of those issues taken up on appeal – which isn’t guaranteed because it can be difficult for a defendant to be heard on appeal during the pendency of a case, before trial – then that’s a multiple-month setback. 

When doing the calendar math, we need to consider that a Mar-A-Lago trial will take at least six weeks. Jury selection – complicated by the presence of the most famous and polarizing man on planet earth at the defense table – will take longer than usual. Even with their fairly streamlined indictment, the prosecution will take multiple weeks to present the evidence and to absorb cross-examination from Trump’s defense team. Trump then can put on a defense case if he’d like, followed by a rebuttal case from DOJ. After all that (and closing arguments, and jury instructions) the jury deliberates. And as it currently stands, we’ve got two defendants going to trial, Trump and his valet, Walt Nauta. Prosecutors (or either defendant) might seek to sever Nauta out for a separate trial but, if not, multiply all those defense opportunities by two. So even if the late May trial date stays in place, any way you slice this, it’s going to take all of June and well into or through July as well. 

Well, you might be thinking, that’ll still allow three months or so before the November 2024 election. But we need to be realistic here. We are simply not going to have a criminal trial – conducted by the Justice Department of one candidate, seeking to imprison the other candidate – during the general election season, on the eve of election day. (Keep in mind, early voting begins in September 2024 in some states). There will not be a criminal trial in September or October 2024. No reasonable judge would countenance that, for fear that the pending election might influence the jury, one way or the other. At the same time, a verdict delivered so close to the election would be politically explosive, no matter how it comes out. (And for anyone rooting for and assuming a Trump conviction – imagine for a moment the impact of anything less, including a hung jury, which could vindicate his claims of victimization by a weaponized Biden Justice Department. The risk runs both ways.) 

We’re left here: it’s a light lift for Trump’s team to get that May 2024 trial date bumped back. And they don’t have to get it moved far before they wind up in a red zone that likely will necessitate postponement of the trial until after the election.

Now that Trump apparently is about to be indicted yet again, this time for his effort to steal the 2020 election, we have to wonder where that trial might fit in. As things currently stand, there’s simply no room on the calendar before the 2024 election. The Manhattan DA’s hush money case – remember that one? – is set for trial in late March 2024, into April. And then we’ve got the Mar-A-Lago trial blockading the summer, May through July. If anything, a trial over Trump’s effort to steal the 2020 election will take even longer than the classified documents case; the fact pattern likely will be broader and more complex, covering the actions of dozens of people over many months. They’d need to start that case in January 2024 (or, realistically, earlier) to get it in before the Manhattan DA’s case in March. That’s simply not happening; five months is nowhere near sufficient prep time for Trump and his team on that one. And there’s no way it can slot in after the Mar-A-Lago trial, in the fall; if it starts then, it might well run into and past the actual election. 

The only hope for any new indictment seeing the light of trial before the 2024 election is if one of the other trials moves, and by a lot – as in, moves out until after the election altogether. Smith has the ability to prioritize between his own two cases, though he’d need a judge to sign off on a motion to postpone one trial for the benefit of the other (and Trump, as the defendant, would have a say). And then there’s the Manhattan DA, still occupying a key swath of the calendar in the Spring. He, too, could agree to move off his date to accommodate one of the federal cases, but there’s no current indication that any such moves are in the works.

This boils down to a math problem. We now have more indictments than realistic trial slots. Something’s got to give – or else we run the risk that neither of DOJ’s federal cases gets tried before the voters cast their ballots. Prosecutors have painted themselves into this corner by taking inexcusably long to charge. (I’ll spare you my usual rant.) And now, they’ve left Trump just one more “one more thing” away from dodging the consequences before the 2024 election. 

Stay Informed,

Elie

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