Buckle up, America: Prepare for a lengthy process.
Last week, Special Counsel Jack Smith made an announcement that former President Donald Trump had been indicted by a federal grand jury. Smith emphasized the government’s intention to have a “speedy trial in this matter, consistent with the public interest.” The outcome of whether Trump gets a speedy trial or not could potentially determine whether he ends up in prison for his alleged crimes.
However, it may still be more than 18 months before Trump’s trial even begins, during which time he could be serving as president again. This would provide him with the opportunity to attempt self-pardon or influence the Department of Justice to dismiss the case against him. While it may seem distant, the federal-court system’s pace, which can sometimes take years for complex and high-profile cases, brings Trump’s potential trial close to the next presidential election. Although Smith will make efforts to expedite the prosecution, Trump’s legal team could introduce motions to delay the trial and prolong the process.
Attorney Kristy Parker from the advocacy group Protect Democracy pointed out Trump’s incentive for delaying the trial, stating, “That is especially true if he understands that the evidence against him is significant and that the chances of him being convicted of these offenses are pretty high.”
Different federal courts operate at different speeds. The Eastern District of Virginia, known as “the rocket docket,” has a reputation for expediting cases, even high-profile ones like the trial of Trump’s former campaign chair Paul Manafort in 2018. Trump’s trial will take place in the Southern District of Florida and will reportedly be overseen by Judge Aileen Cannon, one of his appointees. “Federal judges have enormous control over their courtrooms and over the schedule and timing of their cases. Some are very good at docket management, and some are not,” explained former U.S. attorney Chuck Rosenberg. Although Cannon has little reputation due to her less than three years of service as a judge, she previously ruled in favor of Trump in a lawsuit he filed following an FBI search warrant at his Mar-a-Lago estate. Her initial rulings, however, were eventually overturned by the conservative Eleventh Circuit Court of Appeals, drawing concerns about her ability to conduct an impartial trial.
Norm Eisen, a former Democratic co-counsel during the Trump impeachment, has called for Cannon’s recusal or removal from the case.
Presuming Cannon presides over the case, she will have considerable control over its pace. She will determine the scheduling of pretrial motions and hearings, admissibility of evidence, and rule on time-consuming challenges brought by Trump’s legal team.
The prosecutors estimate that the trial will take 21 days in court, which is a relatively short duration for a case of such magnitude. This suggests the government believes its argument is relatively straightforward, according to lawyer Kristy Parker.
Since the case revolves around documents Trump had in his possession—obtained illegally, according to the government—it is possible he has already seen a significant portion of the evidence. This could potentially expedite the discovery process before the trial. However, cases involving classified documents typically take longer due to the need for the court to determine access to sensitive materials and safeguard government secrets throughout the proceedings. Most of Cannon’s pretrial rulings can be appealed, which may introduce further delays.
Another complication in scheduling is Trump’s pending criminal trial in New York, where he faces charges of falsifying business records. There may also be a potential indictment and trial in Georgia relating to his efforts to overturn the 2020 presidential election results. Trump’s Manhattan trial is set for March, approximately 10 months after his indictment in that case, and coinciding with the Republican primary season. While the cases are in different jurisdictions, this timeline might provide a rough estimate of how long it will take for Trump’s federal trial to commence.
Judge Cannon may face one major question: Should the election factor into her decisions on scheduling the trial and granting delays Trump may request? Parker argues that the election should be taken into account, given the current circumstances. She states, “We are in uncharted territory, and quite frankly, I would think that a court would want to try to get this matter resolved ahead of that point.” However, even if Trump’s trial concludes before the 2024 election, it is unlikely that his appeals, if he is convicted, will be exhausted by then.
Regarding the potential scenario of Trump being elected president while awaiting trial or sentencing, former prosecutors can only speculate on what might happen. The case is likely to proceed after the election, and the Constitution does not explicitly prohibit convicted felons from assuming office. The debate surrounding whether Trump can pardon himself remains unresolved. Although no president has attempted it before, a 1974 opinion from the Justice Department’s Office of Legal Counsel argues that a self-pardon would be unconstitutional. However, even if Trump refrains from self-pardoning, he could still use his appointed officials in the Justice Department to discontinue the case against him. Trump could argue that voters have delivered a more legitimate verdict than any jury could.
Despite all the legal battles to come, Trump’s ultimate fate may lie in the hands of the voters. If he becomes the Republican nominee, they will ultimately have the final say on his future, both in politics and beyond. Parker reminds us, “These cases are important, but they are not magic wands. They will not relieve the voting public of its problems.”
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