We're Going To Need More Coffee

The legal landscape in three of the four criminal cases against Trump continues to shift in his favor this week, following the Supreme Court’s decision to hear the presidential immunity appeal in the D.C. election interference case, creating at least a two-month delay for Trump. Today, requests for trial dates emerged in the Mar-a-Lago case, giving rise to concerns that the scheduling Trump requested, if adopted by Judge Aileen Cannon, would effectively block the D.C. case from going to trial before the election, even if the Supreme Court rules against Trump.

That’s only one of the important things that happened today. E. Jean Carroll filed a stinging response to Donald Trump’s efforts to get out of filing an appeal bond, pointing out that his appeal to the court to trust him was worth about as much as a promise to pay up written on a paper napkin. A transcript released of Hunter Biden’s testimony on the Hill yesterday shows him sparring with Matt Gaetz, suggesting that Gaetz wasn’t the right person to lay into Biden about drug use. A federal judge in Texas halted enforcement of a new state law that would allow Texas police to arrest people suspected of illegally crossing the border because immigration enforcement is the job of the federal government under the Constitution’s Supremacy Clause. In other words, it wasn’t exactly a slow news day. But we’ll focus tonight on the scheduling issues in the Mar-a-Lago case.

Today, Donald Trump, “on behalf of all of the defendants,” filed a proposed schedule for the Mar-a-Lago case. He led with the claim that, “As the leading candidate in the 2024 election, President Trump strongly asserts that a fair trial cannot be conducted this year in a manner consistent with the Constitution, which affords President Trump a Sixth Amendment right to be present and to participate in these proceedings as well as, inter alia, a First Amendment right that he shares with the American people to engage in campaign speech.”

But his lawyers note that since the Judge wants them to propose a trial schedule, they will, although it’s clear that their real request is for a trial after the election. Trump and his co-defendant Carlos De Oliveira propose an August 12 trial date, which means jury selection will start that day, and trial commences after the jury has been seated. Interestingly, their co-defendant Walt Nauta doesn’t want the trial to start until September 9. This is likely because his trial counsel is unavailable between August 5 and August 23, 2024, for “personal reasons.” It’s not unheard of for a judge to direct lawyers to change their vacation plans, if that’s what’s going on here. But if the government wants to try all defendants together and the Judge doesn’t intervene, then this is really a request for trial to start September 9 at best but really, never.

The government’s counterproposal, also filed today, was for a July 8 start. That seems to suggest that Jack Smith believes the Supreme Court won’t be sending the D.C. case back to Judge Chutkan in time for a trial in July or perhaps even in August.

Smith also takes a delicate swipe at Trump’s lawyers, noting that his proposed schedule includes monthly status conferences designed to “ensure the parties are meeting the deadlines the Court sets,” a polite way of saying he knows the Trump team will keep trying to delay matters so a trial doesn’t take place this year.

What are the implications of these dueling requests? There are so many moving parts, including when the Supreme Court decides Trump’s immunity appeal, that it’s hard to know for certain, but here are some possibilities:

• Trump may think that an August trial in the Mar-a-Lago case would foreclose a trial in the D.C. election interference case ahead of the election. If you’re Trump and you have to choose one case, it’s certainly the one Judge Cannon is in charge of, not the one with Judge Tanya Chutkan on the bench. (This may not be entirely correct. If the Mar-a-Lago case takes just weeks to complete, as Smith has suggested, it’s still theoretically possible, if exceedingly unlikely, for Judge Chutkan to at least start her trial before the official November trial date, although, as we noted last night, the sun, moon, and stars would all have to align for there to be a conviction in time to inform voters.)

• If Trump succeeds in getting the Mar-a-Lago case on the books for August or better yet, September, keeping the D.C. case from being scheduled until afterwards, AND then is able to manufacture additional trial delay as the Mar-a-Lago date gets closer, he could possibly avoid having either case go to trial before the election. That’s the worst case scenario here.

• Because decisions about whether to admit evidence at trial are up to the judge and they can be made after the jury is sworn in and double jeopardy has attached, a biased trial judge can make things difficult for the government. (Double jeopardy says the government can’t try a defendant twice on the same charges. Once jeopardy attaches, the government is getting its one try at the defendant. If there’s an acquittal, that’s game over for the government—the government doesn’t get to appeal the judge’s rulings if the defendant is acquitted because it doesn’t have the ability to retry him.) In this case, where there is a search warrant at stake and lots of classified evidence, the government will push to get rulings from Judge Cannon before the trial starts so they can appeal adverse rulings where that option is available. But judges can reserve their rulings until trial has started or even change prior rulings. There won’t be cameras in the courtroom, so we’ll have to rely on reporting to understand how Judge Cannon makes these calls.

At the start of his filing, Trump tries to invoke DOJ policy as a justification for not having a trial this year. But he gets the analysis dead wrong. Trump tries to claim the protection of a DOJ policy against interfering in elections—a huge irony in light of Trump’s efforts to corrupt DOJ after the 2020 election and get the Justice Department to legitimize his false election fraud claims. Trump argues that “Given President Trump’s status as the presumptive Republican nominee and President Biden’s chief political rival, a trial this year would also violate Justice Manual § 9-85.500, which applies to the Special Counsel’s Office, and prohibits ‘Actions that May Have an Impact on an Election.’”

The Justice Manual is the federal prosecutors’ bible, a set of guidelines for conducting federal prosecutions. The provision Trump references reads as follows: “Federal prosecutors and agents 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.”

If you look carefully at the language, you will see that it applies to decisions by the government about the timing of steps in a criminal investigation that could lead to it becoming publicly known an individual is under suspicion (like executing a search warrant) or scheduling an indictment close to an election. The provision forbids prosecutors from scheduling overt actions like this for an explicit political purpose, but in practice, prosecutors avoid doing it at all, in order to avoid any appearance of impropriety.

But this provision doesn’t cover what happens to a case after it’s indicted. Section 9-85.500 is about timing decisions that prosecutors control, and once a case is indicted, the schedule is up to the judge. It’s no longer a matter where DOJ has control over when things, like trials, happen. It’s in the hands of the courts, an independent branch of government, and the schedule is dictated by rules like the Speedy Trial Act and the judge’s discretion. Trump’s argument here doesn’t make sense if you stop and think about it—if it were correct, there would never be a moment when the government would have enough time to investigate, indict, and try a case given our election cycle, and politicians could never be held accountable.

In late January, Merrick Garland confirmed this view, and I wrote about it here. Garland pointed out that the federal cases against Trump were indicted in 2023, and the schedule is now up to the judges who are handling them. Both Trump and the government had to submit their views about scheduling to Judge Cannon for her to make the decision about the calendar; the government isn’t making the calls. DOJ policy doesn’t prevent Trump from being tried in an election year or even while the election is underway, it’s up to the Judge. But I’ve heard this argument made frequently on Trump’s behalf, and it’s important to be able to debunk it. DOJ policy doesn’t prevent a trial this year or any year.

Don’t make the mistake of thinking any schedule Judge Cannon agrees to is written in stone. All sorts of things happen on the road to trial—lawyers get sick, witnesses become unavailable, and issues crop up. In fact, Trump’s lawyers flagged some things that could delay the trial further, including.

• Trump and his co-defendants “reserve the right” to ask for a trial continuance if, in their judgment, the government “continues” to fail to comply with its discovery obligations

• A reference by Trump to his pending motions to dismiss, including one alleging presidential immunity suggest at a reason to delay further. Trump doesn’t have to come out and say that following a decision by Judge Cannon, the losing party is entitled to an appeal and that proceedings in the trial court would come to a halt while it’s pending, because everyone knows that’s the case given the Supreme Court’s intervention on the same issue in the D.C. case yesterday. Trump does ask Judge Cannon to wait until after the Supreme Court rules to schedule a hearing on his dispositive motions in the Mar-a-Lago case and it seems likely that Supreme Court’s decision will resolve the immunity issue across the board, but depending on their ruling, there could be more litigation to come.

• Trump’s proposed schedule includes decisions on classified evidence and other issues, like a Franks hearing to challenge the validity of the Mar-a-Lago search warrant, that run into July, some of which could be the subject of an appeal that would delay the trial.

It shouldn’t be possible for the 2024 election to take place before a jury decides whether Donald Trump committed crimes in an effort to steal the 2020 election. As citizens, we have legitimate interests in learning the truth before the election. There is still some hope this could happen, but it hasn’t been a great week. Make sure you’re talking with the folks around you about the importance of voting in this election, where democracy is on the ballot.

We’re in this together,

Joyce