By Devlin Barrett
(c) 2024 , The Washington Post
Donald Trump’s trial in Washington on charges of federal election obstruction may not begin until 2026 or later because of complex legal and factual issues that may ultimately be decided by the Supreme Court, according to legal experts.
Even that schedule is largely dependent on a particular outcome in the presidential election two months from now; if Vice President Kamala Harris defeats Trump, the cases against him are likely to proceed. But if Trump wins the election, he is expected to push his Justice Department to dismiss or at least shelve the charges against him.
At a hearing last week, the trial judge in the D.C. case signaled she planned to try to resolve key and complicated questions about presidential immunity in a matter of months. At the same time, U.S. District Court Judge Tanya S. Chutkan cautioned it would be “an exercise in futility” to set a new trial date, given the likely appeals.
That’s because whatever she decides will almost certainly be re-examined by the federal appeals court above her. The combination of Chutkan’s work, and that appeals court process, could take a year. And that would happen before any Supreme Court review, which is also expected, given that the high court signaled in its July immunity ruling that it is likely to re-examine the case.
The opinion by the conservative majority remanded the case back to Chutkan to make determinations “in the first instance,” suggesting the Supreme Court still plans to have the last word. And given the high court’s calendar, even if the justices allow enough evidence for prosecutors to proceed, it’s possible a trial wouldn’t happen until 2026 or 2027.
In ruling that presidents are immune from prosecution for their official acts, the Supreme Court specifically instructed Chutkan to review whether Trump’s pressure campaign in 2020 on Vice President Mike Pence was protected by the justices’ newly stated principle of presidential immunity. Chutkan must also examine whether Trump isimmune from prosecution for his efforts to convince state officials, private parties and the general public to change the outcome of the 2020 election, which he lost.
Those novel questions of law, which could further redefine presidential power for generations to come, will not be decided quickly. The high court has already admonished both the prosecution team led by special counsel Jack Smith and the lower courts for what the justices considered rushed and botched decisions the first time around.
“This is going to take quite some time, in my view,” said Amy Levin Weil, an appellate lawyer and former chief of appeals in the U.S. attorney’s office in Atlanta. “Not only does the judge need to figure out what evidence she should look at, she needs to figure out what she should do with that evidence. There are no clear guideposts for what is official conduct.”
“I think the district court judge has a very heavy row to hoe. I would look at this and wonder if she can get it done in a year,” Weil continued. “I have had district court cases pending for years that were easier than this, because it’s all uncharted territory.”
At the moment, the Washington case is the most active of Trump’s four criminal cases. He is charged in the nation’s capitalwith four separate crimes, including conspiracy to defraud the United States and conspiracy to obstruct an official proceeding for his efforts to block the formal ceremonial confirmation of the winner of the 2020 election on Jan. 6, 2021.
Trump separately was convicted in May in New York state court of 34 counts of falsifying business records related to a 2016 hush money payment; he is appealing the verdict, and sentencing is scheduled for a few weeks after the election. In Florida, Smith has appealed a decision by U.S. District Court Judge Aileen M. Cannon to toss out an indictment accusing Trump of mishandling classified documents in his Mar-a-Lago home after he stopped being president, and of obstructing government efforts to retrieve those documents.
In Georgia, Trump’s lawyers are waiting for a state appeals court to hear arguments in December on whether to dismiss a state court indictment for his allegedly obstructing the election results in that state.
At the presidential debate Tuesday between Trump and Vice President Kamala Harris, Trump insisted he would ultimately be vindicated in each case.
“I’m winning most of them, and I will win the rest on appeal, and you saw that with the decision that came down recently from the Supreme Court,” Trump said. “They’re fake cases.”
There is still a great deal of uncertainty surrounding the legal fights to come over the precise consequences of the Supreme Court’s immunity decision.
How soon a Trump trial may happen in Washington depends greatly on whether Smith is successful in his efforts to bundle all the decisions into a court judgment that can be reviewed by the Supreme Court all at once. If the case goes up in piecemeal fashion, meaning the justices have to weigh multiple parts of it, that could add a year or more to what will already be a lengthy process.
Lawyers believe a somewhat quicker path is at least possible based on Chutkan’spreliminary schedule, which calls for prosecutors to submit one far-reaching filing at the end of this month.
Matthew Seligman, a fellow at the Constitutional Law Center at Stanford Law School, said Chutkan may be able to move relatively quickly, and the Supreme Court could decide it doesn’t need to spend many months tinkering with the decisions made by her and the federal appeals court. “If, however, the Supreme Court wants to review the application of its immunity ruling to the indictment and facts of Mr. Trump’s case, then that ruling would come down no earlier than June 2025 and possibly even June 2026, thus pushing off a trial for years,” he said.
Seligman said he still believes the majority of the Trump conduct described in the revised indictment amounts to nonofficial acts that can be prosecuted, including Trump’s efforts at the end of 2020 to submit replacement slates of electors who would vote for him in key states that Democrat Joe Biden won.
“I think the expectation should be that Trump ultimately will not be found to be immune for the electors scheme or the pressure campaign on Mike Pence,” Seligman said. If Trump loses in November, he added, “sooner or later, he will be put on trial.”