The Calendar May Be Trump’s Ally But DOJ Can Speed Things Up

Most people who are the subject of four felony indictments, with 91 separate counts, would be focused on establishing their defenses, but not Donald Trump.

His strategy is to avoid going to trial before the 2024 election. And if he wins, he’s counting on his Justice Department to drop the federal charges and the US Supreme Court to rule that, as president, he’s immune from being tried while in office. For that, Trump’s best ally is the calendar.

Ordinarily, pending indictments in four different jurisdictions would complicate a defendant’s problem, but they seem to be working in Trump’s favor. He argues that he and his lawyers can’t be in four places at once, making motions, reviewing millions of pages of documents, and interviewing hundreds of witnesses.

The Manhattan indictment case has slowed down, and the early trial for two defendants in Georgia makes it unlikely that Trump will be tried there anytime soon. There is still a chance that one of the federal cases can be tried while it matters most, but that’s unlikely to happen unless prosecutors make some major strategic changes from their present course of action.

These aren’t ordinary criminal cases. Imagine how long it will take to pick an impartial jury willing to sit through weeks of trial for a defendant about whom almost every American has an opinion—generally very strong, one way or the other.

In the Florida classified documents case, there are 31 counts of wrongful retention of national defense information, all of which involve the same basic fact pattern: Trump wrongly kept these documents after leaving the White House, despite repeated efforts, including a grand jury subpoena, to have him return them.

His only defense appears to be a claim that he had the right to keep them, which either applies to all of them or none. If so, why does Special Counsel Jack Smith have so many counts when half a dozen would make the same point?

Surely, if he’s convicted, Trump’s sentence won’t be any different if the jury finds him guilty of six or 31 counts—especially because the willful obstruction of justice charges are likely to be the driving force behind whether Trump will spend time behind bars.

There’s another realistic shortcut to getting to trial: because all of these documents will soon be more than three years old, the government should pick out a half a dozen and declassify them now and drop the other charges, thereby greatly accelerating discovery and trial.

Remember, the law Trump is accused of violating only requires that the documents contain national defense information, not that they were properly classified.

Turning to the Jan. 6 case, the special counsel charged Trump with a wide-ranging conspiracy involving conduct in seven states and Washington, D.C.

That means there will be multiple witnesses for each location, which will lengthen the trials and greatly expand the legitimate arguments of Trump’s counsel that they need much more time to prepare for trial.

Is all that necessary? In addition, the charges are brought under three statutes, each presenting some novel legal issues that will be the basis of motions to dismiss.

There are other ways that Trump will try to prevent the Jan. 6 case from coming to trial. Although his motion to disqualify US District Judge Tanya Chutkan was denied, he will move to transfer the case to anyplace but Washington, DC, which is likely to be denied.

The prosecutors have sought to impose a gag order against Trump, and if the judge agrees, Trump will certainly appeal, arguing that the order violates his First Amendment rights, especially his right to campaign for president.

To gain further delay, Trump will also ask the appeals court to recuse the judge, claiming that her denial of a transfer and gag order are further proof of her bias against him.

If Trump wasn’t running for president in 2024, it wouldn’t matter if these trials were pushed back a few months. However, no law prevents Trump from running or even serving as president if he were convicted of these offenses, but the election may well turn on whether Trump is a convicted felon by then.

For that reason, it’s wrong to insist Trump be “treated like any other defendant,” which he isn’t because he may be the next president of the US. It’s therefore perfectly legitimate for Smith to do everything in his power to assure that at least one trial is completed well in advance of the election.

How might that happen? First, he must choose between the documents case, which is far less complicated and for which Trump’s arsenal of delaying motions and appeals are quite limited, and the Jan. 6 case, which goes to the heart of why Trump shouldn’t be president again.

Second, the prosecutors need to trim the allegations to reduce pre-trial delay and make the trial more manageable. That includes cutting down the scope of any alleged conspiracy and the number of counts charged.

Third, the prosecutors shouldn’t press for every advantage pre-trial, such as not fighting for strong gag orders, and thus deny Trump excuses to take immediate appeals. In assessing what is needed at trial, it’s almost certain that Trump will never take the stand in his own defense and give the prosecutors the opportunity to cross-examine him.

If Trump is treated like every other defendant charged with these serious felonies, getting any of these cases to trial in a timely manner will be next to impossible.

But if the prosecutors agree that a less-than perfect, but timely, trial is better than ideal trials in 2025, then they must take the steps outlined above. Otherwise, there will be no criminal trial of Trump in time to give the voters the information they are entitled to before the 2024 election.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Alan Morrison is GW Law’s associate dean for public interest and public service law and professorial lecturer in law.

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