10 months ago
The results in Iowa last week were a win for Donald Trump, but they also underscored that the former president’s ongoing legal troubles are among his biggest liabilities in a rematch with Joe Biden.
Nearly a third of Republican caucusgoers told pollsters that Trump would not be “fit” for the presidency if he is convicted of a crime — a sizable defection that, if it held, would likely doom Trump’s general election chances.
Polling in this area is challenging, so it is best to take this figure with a considerable grain of salt. Some portion of these people, for instance, may believe Trump would literally be incapable of serving as president if convicted of a crime — perhaps because he would immediately be hauled off to prison or disqualified — which is not true, and which they would eventually come to learn if things moved in that direction.
But what is clear is that some lingering courtroom questions are now essential electoral questions as well: When will Trump’s myriad trials take place? And can any jury deliver a verdict before this November?
The answers are crucial to understanding how the 2024 campaign could ultimately unfold. Over the coming year, federal and state prosecutors, defense attorneys and judges — including the Supreme Court — will have to maneuver amid an inflexible political calendar. Here’s the timeline for how it’s likely to go.
Among All Trump’s Trials, the Jan. 6 Case Is Key
For both political and legal reasons, the most important case is the Justice Department’s prosecution over Trump’s effort to overturn the 2020 election.
Even before the Iowa caucuses survey, recent polling data suggested that a criminal conviction of Trump, particularly for election subversion, could ultimately sink his reelection bid if he is the GOP nominee. Everything about this is unprecedented, so there is no way to know for sure how reliable or accurate these figures are, but at this point, the trial in Washington looms over Trump’s campaign like a dagger.
From a legal perspective, the three other pending criminal cases against Trump — in Manhattan, Florida and Georgia — do not pose as potent a threat at the moment.
That’s partly because state prosecutors are willing to defer to the Department of Justice and special counsel Jack Smith. Indeed, in Manhattan, District Attorney Alvin Bragg has indicated he would be amenable to moving his trial date, which is currently for March 25, so as not to conflict with the federal prosecution. But even if Trump is ultimately tried and convicted this year, the state law charges — which concern alleged hush money payments made to the adult film star Stormy Daniels in the run-up to the 2016 election — are not likely to result in serious prison time (if any).
In Florida, the presiding federal judge, a Trump appointee named Aileen Cannon, appears ready to push the trial concerning Trump’s possession of classified documents and alleged obstruction of the government’s investigation past the election. And in Georgia, Fulton County District Attorney Fani Willis’ goal for an August trial for Trump’s effort to overturn Georgia’s 2020 election result was always almost certainly unrealistic — and that was before allegations of impropriety were leveled against Willis that could upend the case.
That leaves us with the federal criminal trial in Washington stemming from Trump’s efforts to remain in power after losing the 2020 election to Biden.
Right now, that trial technically remains on the calendar for March 5, but the pretrial proceedings have been stayed while Trump pursues his bid to have the case dismissed on the theory that he is immune from criminal prosecution in the case, and the judge recently acknowledged that this date is almost certainly going to have to move. A panel of judges on the D.C. Circuit Court of Appeals heard oral argument on the issue earlier this month, though it is not clear when they will issue their ruling. After they do so, Trump could seek a rehearing before the whole court, and after that, an appeal to the Supreme Court itself.
The Supreme Court Could Fuel Delays
If the Supreme Court ends up taking the appeal, it is unclear how long the justices would take to resolve the issue. Last December, Smith tried to leapfrog the D.C. Circuit Court of Appeals to get to the Supreme Court, but the justices ultimately declined to get involved at that time. (The Supreme Court did agree to hear arguments on Feb. 8 on a different Trump case: whether Trump is disqualified from running for office under the 14th Amendment because he engaged in an “insurrection” on Jan. 6, but it has always been highly unlikely he would be kicked off the ballot.)
Smith’s team indicated that its overarching objective is to have the Supreme Court hear the case and issue an opinion during its current term. The current term is likely to end in late June or early July, which means two things. First, the justices would have to be willing to meet this timeline. And second, there would likely need to be some expedited briefing and argument before the court — all of which is entirely feasible given the nature of the issue and its constitutional and political significance. In fact, any apparent effort by the Supreme Court’s conservative justices to slow-roll the proceeding would likely prompt significant and well-deserved criticism at a time when the court’s public standing is as precarious as ever.
If Trump were ultimately to lose his bid for absolute immunity (as he should), the case could quickly head back to the trial court for pretrial and trial proceedings to continue, but given that there has been a stay in place, the court would not be able simply to schedule a trial on short notice.
In fact, Trump’s lawyers recently asked presiding U.S. District Court Judge Tanya Chutkan to hold Smith and his team in contempt for continuing to provide pretrial disclosures to the defense while the appeal is pending and the stay is in place. Smith’s team said they were doing this in order to keep a trial on track for the year, but Trump’s lawyers argued that this is inappropriate. They effectively said their pencils are down — they are not reviewing the government’s pretrial disclosures or doing any pretrial work — unless and until the stay pending resolution of their appeal is lifted. On Thursday, Chutkan denied the Trump team’s request to hold the prosecutors in contempt but acknowledged that Trump should not be required to litigate at the trial level until the appeal is resolved.
That posture will make it difficult for Chutkan to easily assess the Trump team’s trial readiness if or when the case returns back to her, but that is far from the only relevant consideration for her purposes.
The Convention and Campaign Could Also Affect the Trial Date
The setting of trial dates in federal courts is governed by a statute called the Speedy Trial Act, which requires judges to determine whether any pretrial delay would serve “the ends of justice” and “outweigh the best interest of the public and the defendant in a speedy trial.”
This is the highly unusual case in which the public has itself expressed a strong interest in a speedy trial. When POLITICO Magazine polled on this issue last summer in collaboration with Ipsos, 61 percent of all respondents said the trial in Washington should take place before the general election in November.
There are four full months between the end of June, when the Supreme Court finishes its term, and Election Day on Nov. 5. On paper, that is more than enough time for the trial to take place. Smith’s team has said they anticipate their case against Trump taking four to six weeks. It is rare for criminal defendants to put on substantial or lengthy defense cases after the government rests, though Trump’s lawyers may claim they intend to do so, if for no other reason than to complicate the scheduling of the trial.
A trial in Washington during that summer or fall period would also require confronting some issues that will emerge from the overlapping political calendar. For instance, the Republican Party’s convention is scheduled for July 15-18 in Milwaukee. Trump could argue that he is entitled to be present for all of the convention proceedings in order to secure his nomination. (In theory, the GOP convention is the last chance for Republicans to swap out Trump for a less legally troubled nominee, but that outcome appears deeply unlikely considering his tight grip on the party.)
After the conventions, Trump might also argue that a trial before the general election would interfere with his ability to campaign against Biden. After all, if he is stuck in a courtroom in Washington standing trial for more than a month, he will not be able to travel the country doing live events, appearing at rallies in swing states and the like.
But it is far from clear that Chutkan will care, and there is no reason she has to. Indeed, when she originally set the March 4 trial date, she noted that Trump’s political calendar was irrelevant and that “there is a societal interest to a speedy trial.”
What About Justice Department Rules Against Playing Politics?
Prosecutors would also likely need to grapple with Justice Department policies concerning criminal investigations and cases that could impact upcoming elections, but those policies would not necessarily pose a major obstacle under the circumstances.
The department has an unwritten, “60-day rule” where prosecutors traditionally avoid taking major steps in criminal cases that could affect an election — like charging a candidate — in the two-month period leading up to Election Day. A written policy also specifies that prosecutors “may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”
This may not save Trump for two reasons, however. First, the written and unwritten policies do not on their face prevent the Justice Department from continuing to trial in a case that was charged well in advance of an election. That is particularly the case where, as here, the department has a compelling argument that people are actually entitled to know the outcome of the trial before they head to the polls and potentially reelect the defendant.
Second, the Justice Department’s policies do not constrain Chutkan. If she ultimately wants to move the case toward trial at any point this year, she does not need the Justice Department’s permission to do that once jurisdiction returns to her.
Trump’s Endgame Is to Postpone the Trial Past the Election
Trump’s reelection campaign has always been driven in large part by his desire to avoid serious legal repercussions from these cases — the federal cases, first and foremost, since he could easily have them terminated if he’s back in the White House and they pose significantly larger threats than the state cases. It’s a pioneering use of political campaign as legal strategy.
At this point in the calendar, there is no real chance of Trump being imprisoned before November if he is found guilty. Even after a conviction, the sentencing process would likely take several months, and as a former president, Trump would likely be allowed to remain out on bail while he appealed the verdict following sentencing.
But there is a very real and substantial possibility — arguably more likely than not — that Trump will stand trial in Washington before the general election. If that happens, he will probably be convicted, and we will then find out in earnest what the actual political consequences are for Trump’s reelection effort.
His legal team is laser focused on preventing this from happening, but even if Trump manages to postpone all of the trials in his pending criminal cases until after the election, his legal problems will still loom front and center throughout the end of the campaign. The campaign would just be a different type of referendum on Trump’s legal woes.
In this scenario, Biden supporters could envision a future in which Trump — at long last, after the better part of a decade of various investigators pursuing him — may actually wind up in federal custody following a criminal conviction. Trump’s supporters, meanwhile, could see his reelection effort as a way of saving Trump himself from a genuinely shocking and ignominious end, and as a vehicle for seeking revenge on the people who have been pursuing him.
The upshot is this: Trump had a relatively good night last Monday in Iowa, and he is one step closer to his party’s nomination and to a rematch with Biden in the general election. Things are looking pretty good for him in New Hampshire as well. But there is a long way to go between now and November, and the prosecution against him in Washington remains, at a minimum, very much in sight.
English (US)