When Donald Trump faced indictments in various criminal cases this summer, the common belief was that the former US president might find himself spending a significant portion of the 2024 presidential campaign embroiled in back-to-back trials across New York, Florida, and Washington.
However, the actual scenario is unfolding differently. With the federal 2020 election interference case on pause due to ongoing appeals, and persistent delays causing setbacks in the classified documents case, Trump's courtroom appearances might be far less frequent than initially anticipated.
In his criminal cases, Trump has entered a plea of not guilty, facing charges related to allegations such as conspiring to overturn the 2020 election in Washington, retaining national defense information and obstructing justice in Florida, plotting to overturn the 2020 election in Georgia, and making hush money payments to an adult film star in New York.
US District Judge Tanya Chutkan, presiding over the federal election case, has scheduled a trial date for March 2024. Her firm commitment to maintaining this date, and the possibility of even advancing it, has positioned this case as the one likely to unfold before the upcoming election. In Georgia, there is no set trial date, but Fulton County District Attorney Fani Willis has suggested a potential August start. Meanwhile, uncertainty looms over whether Manhattan District Attorney Alvin Bragg would pause his case in the event of a federal trial.
However, the dynamics shifted when the US Supreme Court became intricately involved in the case this month, introducing potential consequences for both the timeline and ultimate resolution of the trial.
Initially, the court chose not to address the issue of whether Trump could have the charges dismissed on grounds of presidential immunity before the US Court of Appeals for the DC Circuit issued its ruling. This decision resulted in the case being sent back, potentially initiating a protracted appeals process.
Subsequently, the Supreme Court became further embroiled in the matter when, two days later, it agreed to review whether an obstruction statute, which prosecutors utilized against Capitol attack rioters and formed two of the four charges against Trump, could be applied in connection to the events of January 6.
In a separate but likely scenario, the Supreme Court is expected to consider Trump's appeal against the Colorado Supreme Court's decision to disqualify him from the state Republican primary ballot under the 14th amendment. The state court found that Trump had "engaged" in insurrection.
The timing and extent of the special counsel's case against Trump could undergo significant changes in the coming months, depending on the Supreme Court's scheduling of oral arguments, the pace of issuing rulings, and the ultimate decisions reached. These developments unfold just ahead of voters deciding whether to grant Trump a second term.
In the obstruction case, if the Supreme Court follows its past practice of limiting the application of the obstruction statute, it could potentially impact or eliminate that specific charge in the indictment," noted Stanley Brand, former House counsel and current defense lawyer at the firm Brand Woodward, which has represented January 6 defendants.
Brand added that the Colorado decision introduces an unpredictable element. "A court ruling on whether January 6 constituted an insurrection under the 14th amendment could similarly cast a shadow on allegations in the indictment," he said.
The special counsel faces a worst-case scenario where the federal election case experiences prolonged delays as the DC circuit addresses the immunity question. Trump could further prolong the process by seeking a rehearing before the full circuit, and there remains a possibility of a ruling against the use of the obstruction statute
The best outcome for the special counsel could involve the Supreme Court swiftly addressing the immunity claim if the DC circuit rules against Trump. This scenario would preserve the March trial date and potentially affirm the application of the obstruction statute to Trump.
However, the lingering uncertainty surrounding crucial aspects of the special counsel’s election interference case directly influences whether Trump will find himself spending more time in court or on the campaign trail during the 2024 election.
Immunity
The US Supreme Court's initial involvement centers on Trump's primary defense against charges of conspiring to overturn the 2020 election: asserting absolute immunity from prosecution for actions tied to his "official duties" as president. Special counsel Jack Smith countered this claim, emphasizing that no one, including presidents, is above the law. Smith argued that Trump, as president, should be held to a higher standard to safeguard the electoral process and reiterated that Trump engaged in 'illegal acts to remain in power despite losing an election.'
The Supreme Court's decision on Friday not to grant certiorari sends the matter back to the DC circuit for a ruling, potentially impacting the viability of the March trial. Even if the DC circuit rules against Trump promptly, he can still seek a rehearing before the full appeals court en banc, with a final appeal to the Supreme Court allowed within 90 days.
The solidified potential for delay was detailed by special counsel's Supreme Court litigator and former solicitor general Michael Dreeben. Dreeben pointed out that the expedited schedule of the court of appeals does not guarantee a timely appellate decision, making it challenging to resolve the case before the scheduled trial date.
Trump has openly acknowledged his legal strategy, emphasizing procedural delays across all his criminal cases. If the trials do not conclude before the 2024 election and he secures a second term, he could instruct his chosen attorney general to dismiss all charges. Additionally, sources revealed that even if the trial occurred before November, Trump's preference was for it to be as close to the election as possible, providing his 2024 campaign with the opportunity to portray the criminal case as politically motivated.
Obstruction
The Supreme Court is poised to review next year whether federal prosecutors can charge defendants involved in the January 6 riot with a statute criminalizing the obstruction of an official proceeding of Congress, which constitutes the basis for two of the four charges against Trump.
The case centers on Joseph Fischer, charged with obstruction for assaulting police officers during the riot. Fischer sought to dismiss the charges, contending that the obstruction statute, enacted under the Sarbanes-Oxley Act of 2002 in response to the Enron scandal, pertained to document or evidence tampering.
US District Judge Carl Nichols, overseeing the case, interpreted the statute as requiring prosecutors to demonstrate that the defendant took action related to a document or record, excluding Fischer's assault on police officers at the Capitol. However, a divided three-judge panel at the US Court of Appeals for the DC Circuit overturned this decision, asserting that obstruction applied more broadly and encompassed impeding any official proceeding. Fischer and two other January 6 defendants have appealed to the Supreme Court to settle the matter.
If the Supreme Court determines that Section 1512 of Title 18 of the US Criminal Code is being applied too broadly, it could significantly impact part of the case against Trump, particularly as the special counsel seeks to establish a connection at trial between the former president's January 6 speech and the ensuing violence.
"The court's grant of certiorari in the Fischer case over the solicitor general's objection may foretell trouble for the government's use of the statute," remarked Brand.
Furthermore, if the court invalidates the use of the obstruction statute due to dissatisfaction with how prosecutors applied general conspiracy statutes to specific crimes, similar to the decision in the Enron scandal involving Jeffrey Skilling, it might undermine the remaining general conspiracy statutes cited in the indictment against Trump, Brand added.
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