Settle in, America: This could take a while.
When Special Counsel Jack Smith announced last week that a federal grand jury had indicted former President Donald Trump, he made a point of saying that the government would “seek a speedy trial in this matter, consistent with the public interest.” Whether Trump gets one could determine whether he goes to prison for his alleged crimes.
In just over 18 months, Trump could be serving as president again, at which point he’d be in a position to attempt to pardon himself or instruct the Department of Justice to dismiss its case against him. That might seem like a long way away, but for the nation’s tortoiselike federal-court system, it’s not. Complex, high-profile cases sometimes take years to get to trial, and former federal prosecutors told me that, even under the fastest scenarios, Trump’s trial won’t begin for several months and potentially for more than a year. Trump may well be waiting for a trial when voters cast their presidential ballots next fall. Although Smith will do all he can to hurry up the prosecution, the former president’s legal team could move to dismiss the charges—though that would almost certainly be futile—and file other pretrial motions in order to bog down the process.
“There’s a pretty obvious incentive from [Trump’s] point of view for delaying this,” Kristy Parker, a lawyer at the advocacy group Protect Democracy who tried cases for 15 years at the Justice Department, told me. “That is especially true if he understands that the evidence against him is significant and that the chances of him being convicted of these offenses are pretty high.”
[David A. Graham: This indictment is different]
Different federal courts operate at different speeds. The Eastern District of Virginia, for example, has long been known as “the rocket docket”; it’s raced through even high-profile cases such as the 2018 trial of Trump’s former campaign chair Paul Manafort. Trump’s trial will occur in the Southern District of Florida and will reportedly be overseen by one of his own appointees, Judge Aileen Cannon. “Federal judges have enormous control over their courtrooms and over the schedule and timing of their cases,” Chuck Rosenberg, a former U.S. attorney in Virginia and Texas, told me. “Some are very good at docket management, and some are not.” Having served as a judge for less than three years, Cannon hasn’t developed much of a reputation either way.
Cannon presided over a lawsuit Trump filed last year after the FBI executed a search warrant at his Mar-a-Lago estate. She issued a series of rulings favorable to him. Representative Dan Goldman, a New York Democrat and a former federal prosecutor who served as a top counsel to the House Judiciary Committee during Trump’s first impeachment, told me it was “concerning” that Cannon would apparently run the former president’s trial. “It was pretty clear that her initial rulings did not follow the law but followed some preconceived personal and political viewpoints, and there’s no place for that in the judiciary,” Goldman said. Indeed, the conservative Eleventh Circuit Court of Appeals reversed a pair of Cannon’s decisions, including one that barred the government from accessing some of the documents that the FBI recovered from Mar-a-Lago.
Another former Democratic co-counsel during the Trump impeachment, Norm Eisen, has called for Cannon to recuse herself or be taken off the case.
If Cannon stays on the case, she will have fairly wide latitude to set its tempo. She will be responsible for scheduling any pretrial motions and hearings, determining what evidence is admissible, and ruling on potentially time-intensive challenges that Trump’s lawyers could bring.
In their indictment, the prosecutors estimated that a trial would take 21 days in court—not an especially long trial for a case of such magnitude. The timeline suggests the government believes it has a pretty “straightforward” argument, Parker said.
The fact that this case centers on documents Trump had in his possession—illegally, the government argues—means that he may have already seen a significant portion of the evidence the Justice Department has on him. Theoretically, that could speed up the discovery process that occurs before any trial. But cases that involve classified documents tend to take longer, former prosecutors told me, because the court will have to determine who can access sensitive materials and how to protect government secrets before and during a trial. Most of the pretrial rulings that Cannon could make are subject to appeal, and those delays can quickly add up.
Another scheduling complication is that Trump is facing another criminal trial, in New York, on charges that he falsified business records, and he could face yet another indictment and trial in Georgia related to his efforts to overturn the results of the 2020 presidential election. Trump’s Manhattan trial is scheduled for March, which would be about 10 months after his indictment in that case and right in the middle of the Republican primary season. (Although the cases are in different jurisdictions, the 10-month lag could be a rough guide for how long Trump’s federal trial will take to get under way.)
[David A. Graham: The stupidest crimes imaginable]
One of the biggest questions Cannon may face is whether the election should factor into her decisions about how soon to schedule a trial and whether to agree to delays that Trump might seek. Parker argued that the election is a legitimate consideration. “We are in uncharted territory,” she said, “and quite frankly, I would think that a court would want to try to get this matter resolved ahead of that point.” Even if Trump’s trial concludes before the 2024 election, however, it’s unlikely that (if he’s convicted) his appeals will be exhausted by then.
The former prosecutors I spoke with could only guess at what would happen if Trump were elected president while awaiting trial or sentencing. The case would likely proceed after the election, and the Constitution doesn’t explicitly bar convicted felons from taking office. Whether Trump could pardon himself is a matter of debate; no president has ever tried, but in 1974, the Justice Department’s Office of Legal Counsel issued an opinion stating that a presidential self-pardon would be unconstitutional. Even if Trump did not attempt to pardon himself, though, he could lean on or simply direct his appointees in the Justice Department to drop the case against him. He’d surely argue that, by electing him, voters had rendered a verdict more legitimate than any jury’s.
For all the legal wrangling to come, Trump’s ultimate fate may yet rest with the voters. If he is the Republican nominee, they will have what amounts to the final word on his future, political and otherwise. “These cases are important, but they are not magic wands,” Parker said. “They will not relieve the voting public of its problems.”
