If Donald Trump is the Republican nominee for president in 2024, it’s now clear he will likely still have criminal indictments hanging over his head on Election Day. It’s possible that his criminal liability for the events leading up to the Jan. 6 riot at the Capitol will remain unresolved.
If that happens, voters will go to the polls without knowing whether one of the candidates in the current election is criminally responsible for trying to overturn the last one and subvert the will of the voters.
Having an election under such circumstances is unthinkable. As Richard Nixon might have put it, voters have a right to know whether their candidate is a crook. It can be avoided, but it’s going to require the judiciary to take some extraordinary steps. And whether it happens will be decided by a relative handful of federal jurists — including a number appointed by Mr. Trump himself.
Of the four criminal cases pending against Mr. Trump, the federal election interference prosecution in Washington currently has the best chance of going to trial before the 2024 presidential vote. The trial date is set for March 4. The Federal District Court judge overseeing the case, Tanya Chutkan, has been doing an admirable job of keeping it on track. But legal developments that are out of her hands now threaten to derail that schedule: Expected pretrial appeals could push the trial date past the November election.
Mr. Trump has moved to dismiss the case on various grounds, including claims of presidential immunity and violation of the double jeopardy clause. For most pretrial motions, if the motion is denied, the defendant must wait to raise the issue again on appeal following conviction, if there is one.
But these two motions fall into a narrow category of claims that usually entitle a defendant to an interlocutory appeal — in this case, an appeal before trial. Because these are claims of a constitutional right not to be tried at all, a post-conviction appeal is not an adequate remedy. By that time, the right has already been lost. A defendant is allowed to appeal such claims before the government may put him on trial.
If, as expected, Judge Chutkan denies these motions, Mr. Trump will have a right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. (I expect the appeals will focus primarily on the immunity claim; the double jeopardy argument seems frivolous.) If he loses before a three-judge panel there, he can ask the full court to review that decision. If that fails, he can ask the Supreme Court to review the case. While all that goes on, the trial cannot proceed.
In a typical case, an appeals process like this could easily take a year or more. In the first prosecution of Senator Bob Menendez of New Jersey, appeals over his claims of constitutional immunity under the speech or debate clause delayed the trial for about 18 months, even with the Supreme Court declining to take the case.
In the Trump case, delays like that would push the trial well past November. If Mr. Trump wins the election, he would be able to shut down the two federal prosecutions and could probably have the state prosecutions at least postponed while he is in office.
This appears to be the primary defense strategy in Mr. Trump’s criminal cases: delay as much as possible to put off any trials until after next November, when Mr. Trump hopes to be in a position to put an end to his legal problems.
Having an election with Mr. Trump on the ballot and his criminal liability for Jan. 6 unresolved could spell disaster for the rule of law. It’s also completely avoidable if the courts — and in particularly, the judges who control the schedule — are willing to do what’s necessary: put the resolution of these motions on a fast track to ensure the case can go to trial as scheduled.
Typically, the judicial and political calendars do not intersect. We expect judges to ignore political considerations and campaign schedules when making their decisions. But in times of political crisis, the federal judiciary cannot simply turn a blind eye. It must respond in a way that will enable the political system to address that crisis in a timely manner. This is one of those times.
This is not a proposal for the courts to act in a partisan fashion. We don’t know whether Mr. Trump’s claim of immunity will be upheld. If it is rejected, we don’t know what the result of the trial will be. The outcome of the legal process is not the point. The point is that the country deserves to know that outcome before it chooses the next leader of the free world.
There is precedent for this kind of judicial rapid response. During Watergate, the appeal of the order for President Nixon to turn over the subpoenaed White House tapes was resolved in only about two months — and that included arguments before and an opinion by the Supreme Court. During the 2000 presidential election, that court heard arguments in Bush v. Gore on Dec. 11 and the very next day issued its opinion shutting down the vote recount in Florida. The usually sedate appellate courts can move with dispatch when they want to.
This case requires similar urgency. The initial appeals here could be easily heard and decided within a few weeks. Whether to grant a rehearing before the full Court of Appeals is discretionary, but if it does grant such a hearing, it needs to be equally speedy.
After the District of Columbia Circuit rules, the losing party will seek Supreme Court review. If Mr. Trump loses the motions, my own hunch is that the Supreme Court may not take the case. In past disputes the justices have not shown much willingness to go out of their way to help Mr. Trump, and the last thing this embattled court needs right now is to wade into another controversy. But if the court does feel the need to weigh in on these novel constitutional issues, it also needs to move very swiftly.
There’s no reason the entire process, including Supreme Court review, could not be completed by January. That would allow the trial date to stay on track if the motions are denied.
There’s no concern about Mr. Trump being prejudiced by this relatively breakneck pace. He has vast financial and legal resources. The issues are already fully briefed before Judge Chutkan. The issues are novel — because nothing like Jan. 6 has happened before — but the questions are not extraordinarily complex; we need a rocket docket, but this is not rocket science.
Some might argue that voters already have enough information about Mr. Trump’s actions and Jan. 6. But a criminal trial is different. In the aftermath of the 2020 election, Mr. Trump and his allies made repeated claims of voter fraud and a “rigged” election. Those claims uniformly failed when tested in court by the adversary system, where actual evidence is required and witnesses testify under oath. In an age of disinformation and fake news, courts remain the arena where facts still matter.
Some voters will not accept the verdict of a criminal trial, no matter what the outcome. But for many it could be a critical data point when casting their ballot.
It’s already not possible to have the trial completed before most of the presidential primaries; Super Tuesday, with over a dozen primaries in states and territories across the country, is March 5. Mr. Trump could have the nomination sewn up by the time the trial is over. But the trial could easily be concluded before the Republican convention in July, so the delegates could decide whether they really want to nominate a felon (if that is the outcome) to lead the country.
A functioning democracy requires an informed electorate. It’s hard to imagine a more important piece of information for voters to have next November than whether a candidate is criminally culpable for trying to overturn the last presidential election.
Our legal system can resolve this case expeditiously while still protecting the defendant’s rights, but the judiciary will have to step up and do its part to protect democracy.
Randall. D. Eliason is the former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School. He blogs at Sidebarsblog.com.
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