The judges presiding over the four criminal cases against Donald Trump may all want to stay out of the politics surrounding the 2024 presidential campaign. It’s probably wishful thinking.
Former federal prosecutors and other legal experts believe at least one, if not two, cases against Trump are likely to go to trial before the election. And the election is now soon enough that almost every decision puts the judges in a “damned if I do, damned if I don’t” situation.
“Going forward with the regular criminal justice process starts to feel like some kind of thumb on the voting process,” former Department of Justice counsel John Q. Barrett said. “The flip side, of course, is the problem: Deferring to the political process, not going forward to a trial because it would taint or affect the candidacy of Trump, is a version of helping Trump’s candidacy.”
This week, two key moments could help determine how the courts’ timelines will intertwine with Trump’s fate. In Washington, Trump asked the Supreme Court on Monday to pause a recent lower court ruling that denied his request for immunity from criminal prosecution as a former president. And in New York, a judge is slated to rule on Trump’s motion to toss out the case brought by Manhattan District Attorney Alvin Bragg, possibly clearing the way for it to proceed in court. No matter what moves these courts make, it’s nearly impossible for them to remain above the political fray.
Judges are acutely aware that they face a double-edged sword, even if they genuinely believe that their own court proceedings will play out independently of politics. The Justice Department, too, tries to appear above politics and has an unwritten policy that it won’t take action less than 60 days before an election. (A memorable exception to this was then-FBI Director James Comey announcing he was reopening the Clinton email probe 11 days before the 2016 election.)
But neither judges nor the DOJ may have a choice this time around. It took months for investigators to conclude their probes and indict Trump, and the former president’s attempts to appeal and throw out various cases against him have further slowed down proceedings, creating a likelihood that at least one trial will occur during election season.
Attorney General Merrick Garland recently said the public’s best interest would be in having a speedy trial in the Washington, D.C., and Florida cases — and defended the time it took the Department of Justice to conclude its Jan. 6 investigation of Trump in a recent interview with CNN.
“The cases were brought last year. The prosecutor has urged speedy trials, with which I agree. And it is now in the hands of the judicial system, not in our hands,” Garland said.
If the Supreme Court declines Trump’s request for a stay, the case — which has been stalled for weeks — can quickly resume and could even head to trial soon. If the justices decide to take up the question of immunity, the court could do so on an expedited schedule — weighing in in a matter of weeks — or on a regular schedule, which could require months or over a year in order to make a decision.
“I think Trump is out over his skis. He believes the Jack Smith D.C. case revolving around the Jan. 6 events, and related attempts to prevent the peaceful transfer of power, is not going to go before the election,” said lawyer Ty Cobb, who represented Trump during Robert Mueller’s probe into election interference. “It’s the only one of the cases that I think stands a chance of going forward. It’s conceivable the New York case goes, but sadly that case is the poster child for Trump’s argument that politicians are out to get him.”
Should the Supreme Court take up the case and proceed slowly, it would effectively end the possibility that Trump could wind up facing trial for charges related to election interference and the Jan. 6, 2021, riot at the Capitol before he is up for reelection again.
As Smith’s election interference investigation hangs in limbo, Manhattan DA Bragg’s case against Trump could, somewhat unexpectedly, wind up going to trial as soon as March.
Trump has filed multiple appeals that slowed the case, and recently a motion to dismiss the case on the grounds that it is political and not applicable to state law. But if Judge Juan M. Merchan declines Trump’s motion to dismiss the case this week, it could put it on track to trial in a matter of weeks.
“My guess is the New York trial will be the first case that comes to trial, and from Trump’s standpoint, that’s probably the most favorable development,” said Philip Lacovara, who worked as counsel in the Watergate special prosecutor’s office.
It would also have ripple effects across the election and the other court cases.
“Even to people who think Trump is an absolute scoundrel, the New York case seems like small potatoes or thin beer. It’s the one that Trump can most easily swat aside when it comes to its significance,” Lacovara said. “The secondary reason why it’s a benefit to Trump is that it gives him a reason to get the other cases delayed, which increases the likelihood that those cases will not come to trial before the election, and have whatever impact they might have on malleable voters.”
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Tanya Chutkan, the judge overseeing the D.C.-based Jan. 6 case, had originally scheduled Trump’s trial for March. As Trump filed appeals related to the case, she recently seemed to acknowledge the trial could happen later this year — during the general election’s prime.
“I hope not to be in the country on Aug. 5,” Chutkan said during a hearing for a different case, Politico reported. But if she is in the country, it will be because “I’m in trial in another matter that has not yet returned to my calendar.”
Chutkan has generally appeared ready to begin a trial during an election year. But that resolve will be tested as the November election grows closer.
“The longer this goes, the harder it is to ignore the realities of the campaign season — and the more likely it is that even a judge like Chutkan would say it’s not in the public interest to proceed with a trial at a time when the electorate should be focused on one of the major party candidates,” Lacovara said. “But the real uncertainty here is what the Supreme Court does.”
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Maggie Severns is a reporter at NOTUS.