Legal scholar: Trump lawyer’s “farfetched” election argument could have “dangerous consequences”

Donald Trump Brendan McDermid-Pool/Getty Images
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Former President Donald Trump’s attorney last week said that if his client becomes the Republican nominee for president, holding a trial in Georgia in the months leading up to the general election would be deemed as "election interference."

Fulton County Superior Court Judge Scott McAfee opened a discussion for trial timing when the former president’s attorney Steve Sadow suggested that if Trump secures victory in the 2024 election, he would be immune from facing a criminal trial in Georgia until at least 2029 – after he is no longer in office.

“I believe that the supremacy clause and his duties as president of the United States — this trial would not take place at all until after his term in office,” Sadow said.

Last month, District Attorney Fani Willis requested that all remaining defendants in the racketeering case, which currently includes Trump and 14 others, face a joint trial starting on August 5. Prosecutors have previously estimated that it would take about four months to present their case, excluding jury selection, meaning the trial could be ongoing during the final months of the election campaign, The Associated Press reported.

“The court should set a trial date for August and reassess the situation then,” former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. “If most of the defendants plead out, then perhaps a trial could be completed well before the November election.”

But Sadow has objected to Fulton County prosecutors proposing to start the trial in August 2024, contending that it would constitute "election interference" by preventing Trump from participating in the campaign during its crucial final months.

“Can you imagine the notion of the Republican nominee for president not being able to campaign for the presidency because he is, in some form or fashion, in a courtroom defending himself?” Sadow said. “That would be the most effective election interference in the history of the United States, and I don’t think anyone would want to be in that position.”

However, legal experts argue that a trial during a presidential election is not interference, but instead a matter of public interest. It would “certainly be a distraction” from the issues on the ballot, McQuade said.

“The court must consider the right of the public to a speedy trial, which would be compromised by waiting until after the election,” she added. “If Trump were elected president, he has a strong argument that he could not be brought to trial while serving, which means the trial would not occur until January 2029.”

But until Trump wins the Republican nomination, delaying the trial is “premature,” McQuade said, adding that “simply declaring for president” should not delay a trial. Otherwise, anyone could delay a trial by declaring their candidacy.

The claim that holding a trial during an election year constitutes “election interference” is “farfetched” and “a ploy to prevent” Trump from facing accusations that any other citizen would have to face, Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon.

“If accepted, this claim would produce dangerous consequences for the justice system and the rule of law,” Gershman said. “Does it mean that a corrupt congressman running for re-election cannot be indicted or tried? That removing Trump from the ballot because he led an insurrection, as the Constitution mandates, constitutes election interference? That the current civil trial in New York must be stopped, that at least five upcoming trials must be postponed, and that Trump should get a free pass without legal jeopardy until he hopes he’ll get elected and then have a chance to pardon himself?”

On top of this, there are several other trials scheduled. If the Georgia trial is delayed, then the other trials will likely fit into a “manageable schedule,” he added. The federal trials in Washington DC and Florida appear to be “airtight”.

“So trying them before the Georgia trial may result in an easier chance at convicting Trump,” Gershman said. “He can’t delay every trial.”

Trial attorney Bernard Alexander told Salon that this is just a “spin” argument to justify delaying the trial. The argument seeks to ascribe political motivations to the judge's decisions, but the court's actions, in general, are “not dependent” on the defendant’s out-of-court actions.

“It happens that Trump is also running for office," Alexander said. "No special rule should apply to Trump or ex-presidents. The burden is on the moving party to demonstrate reasonable cause to delay justice. And as opposed to political motives, having a determination on the merits of the criminal trial(s) would be directly relevant and informative (not “interference”) to the electorate for the upcoming election.”

Trump is confronting three other criminal cases, all set to proceed to trial next year, although he has attempted to delay all of them. His federal trial for election interference and his New York trial related to hush money payments are both slated for March, while his federal trial for hoarding classified records is scheduled for May.

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The ex-president has pleaded not guilty in both the Georgia case and the federal election interference criminal case. McAfee did not set a trial date in the Georgia case and said the issues raised Friday were “something we’re going to be taking up in great detail in the new year.

“This issue of whether a President’s official duties should override a trial in which the president is a defendant has already been decided by the Supreme Court,” Gershman said. “In Clinton v. Jones (1997), in which the plaintiff sued President Clinton for sexual misconduct when he was governor of Arkansas, the Supreme Court held that it was an abuse of discretion for the federal judge to delay the trial until after Clinton left office, and the fact that a trial might conceivably hamper the president in the conduct of his official duties the court could manage that claim if and when it is raised. The Court made it clear that a president is not above the law and should be treated like every other litigant.”