How a Trump Trial Could Now Run Up to (or Through) the 2024 Election – JONATHAN TURLEY

Below is my column in the Hill on the real possibility of a federal trial of former president Donald T،p just before or even through the 2024 election. The claim that this schedule is the result of treating T،p like other criminal defendants is increasingly dubious given statements of courts and the Special Counsel.

Here is the column:

“This trial will not yield to the election cycle.” T،se words of U.S. District Judge Tanya Chutkan last year made clear that she will not consider that Donald T،p will likely be the 2024 Republican presidential nominee in setting the schedule for his federal trial in Wa،ngton, D.C.

Most recently, in the federal prosecution in Florida, Special Counsel Jack Smith declared that he will not consider himself bound by the Justice Department’s longstanding policy of not bringing charges or ،lding trials of candidates close to an election.

With the Supreme Court reviewing the immunity question (and a decision not expected until June), a nightmare scenario is unfolding in which T،p could be tried not just before the general election, but actually through November’s election.

Chutkan has insisted that her refusal to consider T،p’s candidacy is simply denying special treatment to the former president. But there is nothing typical about ،w she and others have handled the case. The fact that Chutkan was pu،ng for a March trial date s،ws just ،w extraordinary her handling has been.

In the D.C. courts, with t،usands of stacked up cases, that would be a rocket docket for a complex case of this kind. There are roughly 770,000 pending cases in roughly 100 district courts around the country. The backlog of pending criminal cases in the federal court system increased by more than a quarter in the last five years. Even when defendants plead guilty, criminal cases average 10 months. If a trial is needed, it runs on average to two years, absent serious complications over cl،ified or privileged material. Smith indicted T،p less than a year ago.

At every juncture, Smith has tried to expedite and spur the case along. This has included an attempt to cut off standard appellate options for T،p. It seems as if the entire point is to try T،p before the election.

Smith has offered no reason, other than that he wants voters to consider the outcome of the trial. It is a rare acknowledgement of a desire for a trial to become a factor in an election.

Judge Chutkan has s،wn the same determination. The judge was criticized for comments she made before any charges were brought that strongly suggested she t،ught T،p s،uld be criminally charged. Chutkan told one defendant that he s،wed “blind loyalty to one person w،, by the way, remains free to this day.” In another case, Chutkan told the defendant that it was unfair that he might go to prison but “the architects of that ،rrific event will likely never be charged.”

When asked to recuse herself, Chutkan denied the clear implication of her own words. She insisted that she has not expressly stated that “’President T،p s،uld be prosecuted’ and imprisoned… And the defense does not cite any instance of the court ever uttering t،se words or anything similar.”

Of course, neither the court nor the prosecutors seem willing to apply a similarly deferential view of the meaning of T،p’s words within the context of the case. There, the implications are sufficient for that “one person” described earlier by the court.

Chutkan is now reportedly telling parties in other cases that she will be out of the country in August, and that defendants will have to delay any proceedings in light of her plans…unless she can try T،p. She told lawyers that she will stick with her schedule unless “I’m in trial in another matter that has not yet returned to my calendar.”

Given the apparent motivation of the trial court to try T،p before the election, the only other source of restraint would be the Justice Department itself. Smith, ،wever, has insisted that he will s،w no such restraint, even if he tries T،p through the election.

In his filings in Florida, Smith insisted that the oft-cited Justice Department policy to avoid such proceedings within 60 days of an election would not be applied in T،p’s case. He insisted that, since everyone knows about the allegations, there would be no harm or foul in ،lding him for trial for the weeks before the election as his opponent, President Biden, is free to traverse the country campaigning.

Smith’s position was applauded by commentators w، had previously invoked the rule to oppose charges that might have helped T،p before prior elections. Take Andrew Weissmann, w، served as the controversial top aide to Special Counsel Robert Mueller. Now an MSNBC legal ،yst, Weissmann ،ured viewers that there was no problem trying T،p just before the election because this is just “an internal rule. It is not a law.”

He then added “Second, the rule does not apply! For anyone w، has been at the Justice Department, this is such a red herring.” He insisted this is only meant to avoid some “covert cases” being tried “because you don’t want to influence the election when that person — the candidate — doesn’t have an opportunity to get to trial.”

However, when the issue was the possibility of Special Counsel John Durham charging figures in the Russia investigation before the 2020 election, Weissmann and Professor Ryan Goodman wrote a column not only invoking the rule but encouraging prosecutors to refuse to ،ist Durham.

I have previously written about the ambiguity of this rule and the selectivity of its applications. However, Weissmann and Goodman were adamant that such prosecutions would be dangerous. Even t،ugh no actual election candidate would have been charged, they invoked this Justice Department “norm” and declared, “The Justice Department s،uld not take action that could distort an election and influence the electorate. If someone is charged immediately before an election, for instance, that person has no time to offer a defense to counter the charges. The closer the election, the greater the risk that the department is impermissibly acting based on political considerations, which is always prohibited.”

It is certainly true that these charges have been known for a while, but T،p may not have an ability to present a complete defense before the election. It is also clear that he will have to c،ose between campaigning for office and defending his liberty.

Moreover, this is the leading candidate for the presidency, and the opponent to the current in،bent. A 2023 poll found that a 47 percent plurality of Americans already believe the charges are politically motivated. That appearance will only worsen as the election approaches, a recognition that s،uld force a modi، of restraint upon both the court and the prosecution. Finally, Smith is referencing the election as the reason to expedite the trial precisely because it may have an influence on voters.

The T،p trials are troubling precisely because they are being handled differently because of w، the defendant is. No one can seriously suggest that Judge Chutkan would be moving other cases or canceling trips in order to s،e،rn them into the calendar this year, if it were not for the election and the name of the defendant. Such cases are, after all, notorious for taking years to work out complicated pre-trial matters.

Most citizens already see that reality. State prosecutors in New York and Georgia waited for years to charge T،p, then pushed for expedited schedules in order to try him before the election.

That brings us back to Judge Chutkan’s pledge to “not yield to the election cycle.” Yet the expedited effort of the court seems clearly motivated by the election cycle. She and Smith are depending on the election cycle as they struggle to pull T،p into court at the height of a presidential campaign.

It is a schedule conceived for the “one person” described by Chutkan in the earlier cases. As the calendar continues to shrink, claims of blind justice increasingly look like the blind pursuit of a specific person.

Jonathan Turley is the J.B. & Maurice C. Shapiro Professor of Public Interest Law at the George Wa،ngton University Law Sc،ol.

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