The details of Donald Trump’s new criminal indictment have just emerged but already people wonder whether a trial on these federal charges could be finished before the November 2024 elections. The answer, for a number of reasons, is almost certainly not.
The former president will be arraigned Tuesday in Miami on 37 counts — including 31 counts of willfully retaining national defense information, much of it involving Top Secret documents, as well as several charges for obstructing justice and concealing or lying about sensitive documents. (The case has been assigned to U.S. District Court Judge Aileen Cannon, a Trump-appointed justice who last year ordered a special master to review documents seized in the search of Mar-a-Lago and was later reversed on appeal.)
If Trump were an ordinary person charged with a run-of-the-mill federal crime, like a bank robbery or a narcotics trafficking offense, it would be unlikely a trial would occur within a year of the arraignment. Criminal cases take a long time to wind their way through the system because defendants have the constitutional right to review discovery and make motions, there are often plea discussions with the government, and trials can be challenging to schedule given courts’ busy trial calendars.
But this is no ordinary case.
Some things about this case filed by Special Counsel Jack Smith could make a trial easier to schedule. For one thing, Trump is not going to concede anything so it’s unlikely there would be significant plea negotiations. And given the stature of the defendant and his unusually high public profile as a presidential candidate, a judge would almost certainly clear out their calendar to make time for a trial if the former president wanted to put this matter behind him before election season.
But the factors that make this case more difficult to schedule are far more significant.
Any national security case comes with additional obstacles that make a speedy trial difficult. Trump’s attorneys will need to obtain clearance to review classified material, a special order will need to be entered to ensure that the material is properly protected, and there are likely going to be fights over classified material provided by the government in discovery.
There are many tools that the government typically uses in national security cases to protect classified material even though the defendant has a right to examine the evidence against him and there is a right to a public trial. Given that Smith has included charges involving 31 separate classified documents — an aggressive approach — he will likely make use of some of those tools.
And the discovery in this case will almost certainly involve classified material beyond the documents charged in the indictment. Under the Classified Information Procedures Act, Trump would be entitled to an interlocutory appeal (made in the middle of case rather than after the verdict) if he receives a ruling against him regarding that discovery. An appeal could take many weeks, if not months. The government also has a right to a mid-trial appeal if the judge rules against them.
Even if there is no appeal, and the government bends over backwards to speed this case along, it will proceed more slowly than the typical case. Judge Cannon doesn’t have extensive experience dealing with national security cases that are often seen by judges in D.C. This raises unique issues, given that the discovery and evidence in the case involves national defense secrets.
So we should take Smith’s claim that he intends to give Trump a “speedy trial” with a grain of salt. As a practical matter, Smith has laid out a case that is overwhelming and he has not held back. While Trump is entitled to a speedy trial, Smith did not streamline his case and it would take a herculean effort to bring this to trial next year.
Trump said on Thursday that he intends to prove his innocence “very soundly and hopefully very quickly.” If Trump wants a speedy trial, and the judge honors that desire, this case could be tried before election season. But practically speaking there is only a narrow window of time in which this could happen. Election Day is Nov. 5, 2024, but as a practical matter, it’s hard seeing Trump agreeing to a trial during the primary season in the early part of the year or between the Republican Convention in mid-July of 2024 and Election Day if he is in fact the Republican nominee for president. A criminal trial of a major party nominee in the weeks leading up to the election could create the impression that the judicial system is interfering in the electoral process. So any trial would need to occur in the roughly three to four-month window between the end of the primary season and the convention.
Pushing the trial date past the November election would not be hard for Trump’s lawyers to do. For over 20 years, I have handled federal criminal cases as both a federal prosecutor and as a defense attorney. Criminal defense attorneys have many tools (both legitimate and ethically questionable) if they want to delay a trial. While “not guilty” verdicts can’t be appealed by the government, guilty verdicts are always appealed and are often followed by other proceedings challenging the verdict, and judges don’t like to try the same criminal case twice.
Defense attorneys can create potential issues for appeal by telling the judge that they are not prepared to proceed, have been unable to review discovery with their client, or have been unable to locate a crucial witness. Defendants can fire their attorneys shortly before trial and hire new attorneys, which creates a lengthy delay as the new attorneys get up to speed. Criminal defendants in cases I have handled have delayed their trials for several years by repeatedly firing attorneys.
Trump parted ways with two of his attorneys, James Trusty and John Rowley, just hours after news of the indictment broke. Trump said he planned to have the attorney handling his criminal case in state court in New York take over the federal case as well. That will definitely slow down the process of getting ready for trial.
The presence of a second defendant in the case, Trump’s Mar-a-Lago employee Walt Nauta, who was videotaped moving boxes of documents, also complicates and potentially slows the trial calendar by introducing a second set of defense attorneys who can also work to slow down a joint trial of Trump and Nauta.
So the ball is in Trump’s court. He could easily delay this trial past the election — and there is every reason why he would, from fundraising advantages to avoiding a distraction from the campaign trail to the very real risk that a conviction might present.
The end result is that the proceedings of this unprecedented case will hover over the electoral landscape through all of next year and potentially well into the administration of the next president, whoever that is.