Given the fact that there are four separate outstanding criminal cases awaiting trial against Donald Trump, it is difficult to keep track of, not to mention make a judgment about the qualitative differences in the cases. Each case, the New York State prosecution of 34 counts for falsification of business records to make hush money payments, the federal prosecution in Florida for the willful failure to return classified documents as well as obstruction of justice, the federal prosecution in Washington D.C. for attempting to obstruct official government proceedings and election fraud, and the Georgia indictment of 23 defendants for racketeering which includes election fraud and false statements, has its own strengths and weaknesses.
At this point, the Washington D.C. case has a firm trial date of early March. The New York prosecution has a scheduled trial date of March 25, 2024, but the Prosecutor, Alvin Bragg, has said that he will defer to federal prosecutors as to scheduling. The Florida federal prosecution for the classified documents stored in Mar-a-Lago and the resulting obstruction allegations has a tentative trial date for May, but the Trial Judge, Elaine A. Cannon, has said that she will reconsider the trial date in early March in light of some of the logistical problems that are arising because of conducting a trial involving classified documents. A trial date in Georgia is yet to be scheduled, but earlier this week Fulton County Prosecutor, Fani Willis, filed papers asking for the Georgia RICO trial to commence on August 5. She also indicated in her pleadings that the trial would continue for many months, which potentially would mean that Trump would be on trial when the next President of the United States is installed in January of 2025.
In light of the indictment and the above-mentioned schedule, it is my opinion that the “ballgame” among these cases is the Washington D.C. case in front of Judge Tayna S. Chutkan. First of all, she has set a peremptory trial date on this matter and made clear that our legal process will take precedence over the electoral process. If a crime has been committed, it is no defense that the defendant is too busy to go to trial because of a pending election. Actually, there is precedent for this in New Jersey because in 1970 the United States Attorney’s Office prosecuted Newark Mayor Hugh J. Addonizio who stood trial during his election, including on the date of his runoff where the court adjourned one hour early to allow people to vote.
Second, Donald Trump is the sole defendant in the Washington D.C. case and the fewer parties and defendants there are, the fewer things that can go wrong from a scheduling point of view. Strategically, being the only defendant puts tremendous logistical pressure on the defense because the Government witnesses are coming at you every day and there is no counsel for a co-defendant to carry some of the workload.
Third, from the outside this looks like a tight, very strong case, about what, in reality, was an attempted coup. Trump’s bottom line defense will undoubtedly be that, even if he lost the election, in his heart of hearts, he believed he won the election, and therefore he had no criminal intent. But the Government has done the pick-and-shovel work in this case in terms of evidence and has gotten judicial rulings which have pierced the attorney-client privilege and executive privilege to enable the prosecution to introduce evidence that Trump was told repeatedly by his inner circle that he lost the election and there was no substantial evidence of fraud. The Government appears to have evidence in this vein from Bill Barr, his former Attorney General, Pat Cipollone, his White House Counsel, and perhaps even his Chief of Staff, Mark Meadows.
Based on my experience, the most important event at the trial will be jury selection. Same case, same lawyers, same evidence, same judge, different jury, different results. I suspect both sides would work harder on jury selection than anything else. I would also not be surprised if the prosecution sought an anonymous jury whereby the attorneys would know something about the background of the jurors but not their names or addresses. It would also not surprise me if the prosecution also sought a sequestered jury whereby the jury is locked up and isolated once the trial begins, as happened in the O.J. Simpson case.
Getting back to timing, since this case is a single-defendant trial, there could easily be a verdict by May or June of 2024. If there is a conviction, there will undoubtedly be post-trial motions, but a judge intent on moving the proceedings could conduct a sentencing proceeding by September. Assuming a custodial sentence in the event of a conviction, I suspect that Judge Chutkan or the D.C. Court of Appeals would grant bail pending appeal.
It may well be that Donald Trump’s ultimate defense to both federal criminal prosecutions is the political process, because if he wins he will undoubtedly try to pardon himself. I have a good friend who reminds me that this election will be won at the ballot box and not in the courtroom. But if Trump is elected after a trial where there is a conviction, it will say more about America than it will about Donald Trump.