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On March 4, 2024, Donald Trump will go on trial in Washington for conspiring to overturn the 2020 election. He’s also set to be tried in New York that month on charges of falsifying business records (though this date could be moved), while his classified documents trial (the one in which he’s accused of keeping classified material in a resort bathroom) is slated for May. And his trial on state-level election-conspiracy charges in Georgia is still being scheduled.
That’s a lot of trials—and a lot of overlap with primary season. March 5 is Super Tuesday, after which voting continues through early June, and the Republican National Convention begins July 15 in Milwaukee.
The likely Republican nominee is going to be in a courtroom, it appears, for, like, all of the start of the 2024 election. That’s nuts! It’s unprecedented! But what’s it going to look like on a day-to-day basis, and how might the trials affect the operations of the campaign and vice versa? Your guide to the big questions, below.
Will legal restrictions on Trump’s movement prevent him from holding campaign events?
Only sort of. He’s out on bail in each case, he hasn’t had to agree to any restrictions on his travel as a condition of his release, and he has access to a large private airplane. However! A federal criminal procedure statute, Rule 43, requires defendants to attend their own trials. (New York has a similar rule. Melissa Redmon, a professor at the University of Georgia School of Law, wrote in an email that defendants in Georgia can waive their right to be present but that “the right is not absolute” and “the court can order a defendant’s presence when necessary to properly conduct the trial.”)
What if he decides that he doesn’t want to follow Rule 43? F—k Rule 43!
The notorious Rule 43 does, in fact, stipulate that its attendance requirement can be waived. Exceptions have been granted in the past for health reasons, and in an August Lawfare article, Columbia University Law School’s Daniel Richman posits that Trump and his attorneys might claim that campaigning for president was a matter of such public interest and importance that his absence was justified.
Richman also presumes, though, that the prosecution would object to this request on the grounds that Trump’s absence would undermine the legitimacy of the trial, and that he might make comments about the accusations against him while campaigning that could influence the jury. So how would a judge rule? Richman considers the relevant issues and concludes that … it’s unclear. (As we will continue to see, there are few precedents in American legal history that speak directly to the matter of a presidential candidate who is facing 91 felony charges.)
In any event, Trump will have nights and weekends free, and was already known for flying home after campaign events so as to avoid having to sleep in hotels. Should he decide to participate in any primary debates, it would behoove broadcasters to schedule them at his convenience for ratings purposes. And if he wins the primaries and caucuses that are being held before March 4—particularly the ones in Iowa, New Hampshire, and South Carolina—he may not have any opponents who are relevant or solvent enough to keep running against him anyway.
What if he won’t stop interrupting witnesses and the judge, or calls on his supporters to disrupt the trial?
Heads of state who are charged with crimes sometimes attempt to reject the authority of the court in which they’re being tried. Former Yugoslavian President Slobodan Milošević, during his war crimes trial in the Hague, refused to stand up or answer the judge’s questions. Saddam Hussein told a judge at his trial in Iraq to “go to hell” and left the courtroom in anger after another exchange that involved his half brother referring to the court itself as the “daughter of a whore.” Trump is also in this situation in the first place because he and his supporters attempted to prevent a proceeding adverse to his interests from taking place—namely, Congress’ certification of votes on Jan. 6, 2021.
But there are factors that weigh against his making an equally audacious attempt to defy the authority of the courts. For one, many of the supporters who attacked the Capitol on his behalf are now serving prison sentences. By refusing to appear at an arraignment or disrupting a proceeding, Trump would also be courting immediate, go-to-jail-right-now detention.
What if he’s counting on a backlash against any attempt to imprison him—believing he’ll get released after public outcry or that law enforcement agents will refuse to detain him?
It’d be a gamble. Historically, public sentiment turns the most sharply against Trump when he acts the way a dictator would act. (During his presidency, his lowest ebb of public approval occurred after Jan. 6 and his second-lowest after Black Lives Matter protesters outside the White House were tear-gassed.) By contrast, a recent poll indicated that about half of the public already believes that the charges against him are politically motivated. If his goal is to avoid spending any time in prison, maintaining a sympathetic and at least vaguely statesmanlike public profile is in his strategic interest for several reasons.
Oh, so Donald Trump is all of a sudden going to be listening to advice about his “strategic interest”? He was recently found liable for defaming E. Jean Carroll in an online post that he published after she’d already sued him once for defamation. He has been captured on a recording showing classified documents to guests at Mar-a-Lago while telling them that the documents were classified. That guy is going to get it under control?
That’s a fair question. We can say only that the lawyers who were recently hired to lead Trump’s defense in Fulton County and the District of Columbia are prominent and experienced in their fields, which is not always true of his attorneys. That could be a sign of his intention to conduct a serious defense, and not a Four Seasons Total Landscaping defense.
“I think Trump and his lawyers would be savvy enough to try to make sure that there would not be any kind of violent disturbances to the trial process,” said David Shapiro, a former FBI special agent and prosecutor who is now a distinguished lecturer at the John Jay College of Criminal Justice. “That becomes a self-defeating strategy when you’re trying to present yourself as a martyr and demonstrate to your base that the stakes of the election are incredibly high.”
Let’s say he does decide to keep himself under control. What’s his long-term strategy?
Trump’s most direct route to staying out of jail is being found not guilty. And remember: Jurors can vote however they want for whatever reasons they want. Andrew Weissmann, a longtime federal prosecutor who worked for Robert Mueller’s Russia investigation, has raised the possibility that a Trump supporter might obscure their true views during jury selection in order to be able to cast a not-guilty verdict. But there’s also the possibility that a politically neutral juror could simply come to believe that there is something a bit off about convicting a presidential candidate of a crime in an election year, even if it sounds like he did what the prosecution says he did.
Are Trump’s attorneys allowed to suggest that jurors vote not guilty because they’re uncomfortable with the timing of the trial or its potential effect on the election?
No. Juries in the United States are instructed only to consider whether the prosecution has proved its case with the facts presented, rather than to consider engaging in “nullification,” i.e., voting based on whether they think a given law is fair or a given prosecution is a good use of the government’s time.
U.S. courts have been emphatic, most significantly in the 1895 Supreme Court case Sparf v. United States, in ruling that juries do not have an intrinsic right to consider nullification—or to be informed about it. Trump’s lawyers will almost certainly not be allowed to argue that he’s being prosecuted over an issue that should be left to voters, or raise the idea that he is being singled out because Democrats don’t like him.
That doesn’t mean they can’t push during jury selection for jurors whom they suspect of being amenable to those ideas. “What does it mean for an argument to fly?” asked Lawrence Douglas, a professor of law at Amherst College and author of the prescient May 2020 book Will He Go?: Trump and the Looming Election Meltdown in 2020. “It really means getting one juror to engage in an act of nullification.”
Although Trump’s lawyers would likely be reprimanded by the court for bringing up such ideas in front of the jury, Douglas said, the payoff might still be worth it. He pointed out the precedent of the 1969–70 Chicago Seven trial, during which attorney William Kunstler and others argued that the prosecution of several prominent anti-war protesters was the immoral work of an oppressive government; while Kunstler was convicted of numerous charges of contempt of court, both the contempt convictions and the defendants’ guilty verdicts were ultimately overturned.
“A flat-out argument that the prosecution is politically motivated would likely be shut down by the court, but any defense counsel worth her salt will find ways to raise this suggestion before the jury,” Richman told Slate by email. “One way might be in cross-examination of government witnesses that suggests their testimony is biased because it’s politically motivated. Bias impeachment is foundational, and indeed, at some level, constitutionally protected, and counsel may therefore be allowed considerable leeway.”
What about being found not guilty because the jury decides he is, in fact, not guilty of what he is accused of?
That’s always a possibility as well! Though, for what it’s worth, there seems to be a consensus in legal circles that, under normal circumstances, Trump’s classified-documents case would be an open-and-shut slam-dunk for the prosecution. A number of legal observers have also written that the defense Trump’s attorneys are signaling they will raise in the 2020 conspiracy cases—i.e., that he sincerely believed he’d won the election and that his efforts to reverse its outcome constituted protected political speech—is not a strong one. (There is disagreement, for what it’s worth, about whether the fraudulent recordkeeping charges in New York are justified.)
There’s also the possibility of a hung jury—one that can’t come to a decision either way. The government could retry Trump at a later date if this ends up happening, but the longer his prosecutions take, the better off he is. (This is also why he’s been asking for trial dates in the distant future and is expected to litigate every possible pretrial motion.)
Why? As a man of integrity who’s convinced of his innocence, wouldn’t Donald Trump want a speedy trial at which he could clear his good name and restore his reputation for honesty?
Delays work to his advantage in a few ways. For one, the more time that passes after a thing happens, the less the public cares about it. This has played out, for instance, in Israel, where Prime Minister Benjamin Netanyahu has been the subject of corruption-related investigations and prosecutions since 2016, with both public interest and effects on his popularity reaching the point of diminishing returns. In the U.S., public sentiment could shift toward the idea that prosecuting Trump is a nuisance and a waste of time, putting pressure on a future Democratic administration to drop charges. There’s also the fact that if he wins the election and becomes president, he gets to be in charge of the executive branch that, in two of his cases, is prosecuting him.
So he could just appoint an attorney general who promises to drop the charges?
Yes. He could also push for new laws or “reforms” to Justice Department policies that would just so happen to apply to the kinds of crimes he’s accused of. In Israel, Netanyahu and his allies have passed laws that would weaken the judicial system that has acted as a check to his power. Larger-than-life Italian leader Silvio Berlusconi likewise engineered the passage of laws that shortened the statute of limitations applying to crimes he was accused of, although he was ultimately still convicted of tax fraud.
Trump could also attempt to pardon himself in any federal cases in which he’d already been found guilty. While he would not be able to pardon himself in a state-level case—and is unlikely to be able to benefit from the state of Georgia’s pardon process—the DOJ would be able to argue on his behalf that presidents are immune from prosecution during their terms. (This is actually the DOJ’s existing view on the issue, and it predates Trump’s first presidency.)
Is it possible that he will be found guilty and sentenced before the election? And if he is found guilty, would he go to jail?
Ehh … it’s iffy. Said Richman by email: “If the D.C. trial actually goes forward in March—a massively optimistic assumption—and lasts for, say, a month or two, a normal defendant could expect to be sentenced before November. But I’m not prepared to say more with any degree of confidence.” As to jail time, others convicted of Jan. 6–related crimes and of mishandling classified documents have been sentenced to long terms. Whether a judge feels comfortable sending Trump to prison is another one of those “Who knows? Do you know? I don’t know” questions.
Could he take the oath of office from jail?
There is nothing in the Constitution that says a dog can’t play basketball or that the oath of office can’t be taken from the old “federal pen.”
Let’s say he does win, and try to pardon himself, and claim immunity from state prosecutions. Would that … work?
Those attempts would be litigated—which is to say, they too would test judges’ and state officials’ willingness to take unprecedented actions in response to Trump’s unprecedented line stepping.
What if he loses the election?
Then everything proceeds as it would under “normal” circumstances.
So Trump—who has always talked about himself way, way more than other political candidates—will now be incentivized to emphasize his alleged victimization in order to win an election so he can keep himself from potentially being imprisoned on charges related to his ongoing insistence that he was victimized by a conspiracy in the previous election?
Witch hunt! Indeed, Trump is going to make the next year-plus into a referendum on whether he is being treated “very unfairly” by biased judges, only being prosecuted because “Sleepy” Joe Biden is senile and afraid of losing to him, etc. In a recent one-hour interview with radio host Hugh Hewitt, Trump described the charges against him as “fake” 24 times.
He also answered a question about whether he’d agree to drop out of the race in exchange for immunity from prosecution with a diatribe about the Biden administration’s immigration policies that described current immigrants to the U.S. as arriving from “foreign countries that many people have never even heard of” and “areas of the world that nobody can believe.” (Responded Hewitt: “These are great points, Mr. President.”) He’s a singular figure, there’s no denying it.
Will it work? Will he get elected?
Forty-five percent of Republicans say they won’t vote for him if he’s convicted of a crime and 52 percent say they won’t vote for him if he’s serving a prison sentence, according to an August Reuters/Ipsos poll. Also of note: As the National Review has documented, Trump is already holding campaign events at a much lower rate than his primary competitors, which suggests the possibility of a “too distracted to lead the country” line of attack.
But he’s still leading primary polls by 40 points. And partisan voters will say a lot of things when an election is a year away before ultimately deciding to vote for the candidate next to their party’s name.
So … should we?
Move to a foreign country that no one has even heard of which is located in an area of the world that nobody can believe?