A Delay Strategy That Seems to Be Working

Trump’s delay strategy seems to be working

The schedules for Donald Trump’s criminal trials are still coming into focus, but one thing seems clear: His strategy of seeking delays is paying off.

The Supreme Court gave him a victory of sorts yesterday by deciding to take up his long-shot argument: that he is all but immune from prosecution for any actions taken while in office. The practical effect was to push back, by several months at least, the start of his federal trial on charges of plotting to overturn the 2020 election. Whether the trial can get underway before Election Day remains uncertain.

Last year, when Trump was charged in New York, Florida, Washington and Georgia, it seemed as if he might spend much of 2024 in front of a jury. Now, if events break his way, he could face only one trial before the November election.

Tomorrow, the timetable for another case will get some clarity. Judge Aileen Cannon will set a new date for the start of Trump’s trial on federal charges of mishandling classified documents after he left the White House and obstructing the government’s efforts to retrieve them. That trial was originally scheduled to start May 20, but the judge has indicated that she is inclined to make some “reasonable adjustments” to the timing.

Trump’s legal team has in the past asked that the trial be delayed until after the election. And the former president will be in the courtroom tomorrow in Fort Pierce, Fla., to hear whether Cannon, whom he appointed toward the end of his term, will go along.

The timing of a third criminal case facing Trump is also in flux. That case, in Georgia, where Trump has been charged with trying to subvert his election loss in the state in 2020, is mired in pretrial proceedings, right now focused on an effort by the former president and some of his co-defendants to disqualify the district attorney who brought the case.

It now seems that Trump could potentially get to Election Day with only one of the four trials having been completed. In that case, a state judge in Manhattan set a start date of March 25 for Trump’s trial related to hush-money payments he made to a porn star in an effort to avert a scandal on the eve of the 2016 election.

The Supreme Court weighs in

By deciding to take up Trump’s immunity claim — a legal theory rejected by two lower courts and one that few experts think has any basis in the Constitution — the Supreme Court bought the former president at least several months before a trial on the election interference charges can start.

It is not out of the question that he could still face a jury in the case, in Federal District Court in Washington, before Election Day. At this point, the legal calendar suggests that if the justices issue a ruling by the end of the Supreme Court’s term in June and find that Trump is not immune from prosecution, the trial could still start by late September or October.

But with each delay, the odds increase that voters will not get a chance to hear the evidence that Trump sought to subvert the last election before they decide whether to back him in the current one.

If Trump is successful in delaying the trial until after Election Day and he wins, he could use the powers of his office to seek to dismiss the election interference indictment altogether. On top of that, Justice Department policy precludes prosecuting a sitting president, meaning that, once sworn in, he could very likely have any federal trial he is facing postponed until after he left office.

On its surface, the Supreme Court’s ruling last night was a purely logistical decision. The justices decided to keep preparations for the trial on hold while they review a lower court’s rejection of the immunity defense. They set a hearing on the issue for the week of April 22.

As a practical matter, however, the court’s decision slow-walked the process of resolving the immunity debate, validating what had seemed like a last-ditch move by Trump’s legal team to find a way to keep pushing back a trial date.

The election interference case in Washington was supposed to have been the first of Trump’s four criminal proceedings to go in front of a jury. Months ago, the judge overseeing it, Tanya Chutkan, picked a trial date of March 4.

But then Trump filed a motion to dismiss the case, arguing that he enjoyed immunity from the charges because they arose from acts he took as president. While the claim had no precedent and went against basic legal and constitutional principles, it had a powerful attraction to Trump’s lawyers: Once it was lodged, Judge Chutkan was required to put the underlying case on hold until the question of immunity was resolved.

Earlier this month, a federal appeals court in Washington weighed in on the question, rejecting the immunity defense in a unanimous and scathing ruling that found that Trump was subject to federal criminal law like any other American.

He then asked the Supreme Court to keep the trial proceedings on hold while the justices decided whether they wanted to weigh in on the issue, perhaps hoping less that the justices would agree with him on the merits of his claims than that they might take up the question and take their time in reaching a decision.

And that is precisely what the court did.

The question of when the trial will ultimately happen has been complicated by Judge Chutkan’s insistence that Trump not lose any time to prepare for the proceeding while the pause in the case remains in effect. She has suggested in court papers that, in the spirit of fairness, the former president should have an extra day to prepare for every one lost to the stay.

Judge Chutkan froze the election case on Dec. 13. That means, if she sticks to her decision, she owes Trump an additional 82 days of preparation time — equivalent to the period between Dec. 13 and the originally scheduled trial date of March 4. If the Supreme Court renders a ruling on the immunity decision in June and preparations for the trial start up again immediately, the extra 82 days could push a trial date into September.

At that point, the general election campaign would be in full swing, and there would be no guarantee that the trial could be completed by Election Day.

Your questions

We’re asking readers what they’d like to know about the Trump cases: the charges, the procedure, the important players or anything else. You can send us your question by filling out this form.

Is it possible for Trump to be on trial in two places at the same time? — George More, New Suffolk, New York.

Alan: It’s really not possible. While defendants in criminal trials can get permission to miss hearings here and there, they are generally supposed to be present once the trial gets underway. That’s why there has been so much tension over when the trials will take place and how to fit them all on the calendar not only in relation to each other, but also against the backdrop of the rapidly approaching presidential election.

Where does each criminal case stand?

Trump is at the center of at least four separate criminal investigations, at both the state and federal levels, into matters related to his business and political careers. Here is where each case currently stands.