Will Trump stand trial in DC before the election? Experts say it's unlikely, but not impossible

Will Trump stand trial in DC before the election? Experts say it's unlikely, but not impossible

Judge Tanya Chutkan paused proceedings in the case last December.

ByPeter Charalambous

June 30, 2024, 6:38 PM

More than six months after a federal judge froze former President Donald Trump's federal election interference case, the Supreme Court is poised to issue a ruling that will guide the trajectory of the case, including whether the former president could stand trial ahead of the 2024 election.

The justices are expected to issue a decision on whether a former president is shielded from criminal liability for "official acts" taken while in the White House. Trump is claiming such immunity to try to quash the federal election subversion prosecution brought by special counsel Jack Smith.

Smith charged Trump with four felony counts, including conspiracy to defraud the United States and conspiracy to obstruct an official proceeding, over his efforts to hold onto power after his 2020 election loss. Trump pleaded not guilty and has denied any wrongdoing. The trial was initially set to start in March but has been delayed while the high court considers the immunity question.

If the justices reject Trump's claim of absolute immunity and remand the case to Judge Tanya Chutkan, she could set a trial date over the coming months, though experts who spoke to ABC News cautioned that a trial beginning before November would be logistically challenging and is nearly guaranteed not to reach a verdict before Election Day.

"The trial court would have to be exceptionally motivated to find a way to actually hold a trial on this before November," said Justin Levitt, a professor of law at Loyola Marymount University.

Chutkan initially scheduled a March 4 trial date, including having prospective jurors fill out a questionnaire beginning on Feb. 9. She formally scrapped that schedule in early February, as Trump appealed the case based on his claim of near-absolute immunity for his actions as president.

"The court will set a new schedule if and when the mandate is returned," Chutkan wrote in a February order.

On Feb. 28, the Supreme Court said it would take up the case on Feb. 28. Trump filed a brief with the court making his formal argument on March 25. In an April 8 filing, the special counsel urged the Supreme Court to reject Trump's appeal. The high court heard oral arguments on April 25.

Chukan's next move will largely be guided by how the Supreme Court rules on Trump's claim of immunity. A clear rejection of Trump's claim -- either the justices clearly limiting the bounds of presidential immunity or determining that Trump's actions were not official acts -- could most clearly pave the way for a trial, one expert said.

"That would be the simplest outcome for everyone, if the court adopts the special counsel's position that there is no immunity for official acts," said Boston College Law School professor Jeffrey Cohen.

In pausing the proceedings, Chutkan assured the parties that they would be given the same amount of time to prepare for a trial -- approximately three months based on the timeline to trial when Chutkan paused the case. Chutkan has also kept a relatively free trial schedule over the next four months, with her next trial scheduled to begin on Nov. 4.

That timing suggests a trial could begin in Washington, D.C., in late September or October, though the newfound proximity to the election could prompt a further delay, experts said.

"It's almost impossible, and to do it would open the court to arguments that they're interfering with the general election," Cohen said about a potential September or October trial start date. "It seems to me that the defendant has a pretty good argument that rushing it doesn't serve justice in this case for him."

While Trump's team originally pushed for an April 2026 trial date, special counsel Jack Smith urged Chutkan to schedule the trial to begin in January of this year, arguing that a speedy trial would "vindicate the public's strong interest." Since the case was paused, Smith's team suggested during a hearing in Trump's Florida classified documents case that a trial within 60 days of an election would not violate Justice Department policy intended to avoid influencing an election.

However, the magnitude of the Washington, D.C., case; potential issues on appeal and proximity of the election might discourage prosecutors from even requesting an early trial date, according to Levitt.

"The overriding mandate of the Department of Justice in its exercise of its prosecutorial power is not to be the story in a campaign -- to try to keep the campaign story separate from the criminal story," Levitt said.

If the Supreme Court rules that some of Trump's alleged conduct is protected by immunity or issues an unclear decision, Trump's criminal case could be bogged down in further delays about how the decision impacts the scope of the case or evidentiary issues, Pace University law professor Bennett Gershman said.

"There's going to be some give and take in the opinion that's going to allow Trump's lawyers to start making motions for a hearing, or maybe multiple hearings," said Gershman, who predicted that a trial before the election was unlikely. "I don't think that there could be any decision that would be so clear-cut that Judge Chutkan could just say, 'OK, we have that now. It's behind us. Let's go to trial.'"

Trump's lawyers could also attempt to further delay the proceedings by appealing any of Chutkan's future rulings and requesting another stay.

"I have no doubt that Judge Chutkan will be very attuned to the possibility of those appeals and the further delay in every decision she makes," Levitt said.

If the Supreme Court finds that Trump's conduct was official acts immune from prosecution, Smith's team would likely have to drop or significantly modify the case, according to Cohen, though he described such an outcome as unlikely and "legally shocking."

Regardless of the exact ruling from the Supreme Court, the case will likely be back in the hands of Chutkan, who will have to navigate the new legal landscape sculpted by the Supreme Court and the historic question of whether the former president should stand trial during the heights of a presidential election, experts said.

"It's the judge's call. The lawyers can make their arguments, but it's the judge who ultimately makes the decision, and the judge can speed things up," Gershman said. "Judge Chutkan is going to have to make a decision."

In another high-profile decision, the Supreme Court on Friday limited the scope of a federal obstruction statute used by prosecutors to charge more than 300 defendants involved with the Capitol riot on Jan. 6, 2021, including former President Trump.

Chief Justice John Roberts, writing for the 6-3 majority, said the government must show in those cases that the alleged obstruction related to "impairing the availability or integrity" of "records, documents, or objects" used in the disrupted proceeding.

The Justice Department had applied the charge more broadly in many cases, alleging that the physical presence of some of the rioters inside the Capitol was alone "obstruction of an official proceeding" under the law.

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