Member Newsletter
Now that we’re getting a view of the dynamics of Donald Trump on trial — not indicted, not awaiting trial, not the first of this or that, but actually on trial — with the requirement to be there and, well, be on trial, it’s worth revisiting where we may be this fall. As we know, SCOTUS decided to do Donald Trump a massive solid by first refusing to take up Trump’s immunity appeal without it first being heard by the DC circuit court. Then they really piled on the favors by agreeing to take up the case in full after the circuit court emphatically shot it down. SCOTUS oral arguments are next Thursday and realistically we may not get a decision until June or July. That puts the beginning of the trial in late summer at the earliest and quite possibly into September.
Set aside for the moment that the appeal itself is baseless and out of sync with American law, and that few think there’s any chance of Trump actually getting any relief even from this Supreme Court. It’s been treated as a scandal that the Court has taken upon itself to delay the trial anyway from four to six months. It very much is a scandal and not one that can be explained by any sort of apolitical weddedness to procedure or practice. But sometimes getting what you want may not be all it’s cracked up to be.
One big problem with these SCOTUS-engineered delays is that there’s a decent chance there won’t be a verdict in the trial before Election Day. That’s really a travesty given how long ago these charges were brought. But look at the timing a little more closely. As I watched these delays pile up I worried that there would be some sense either in the Courts or from the prosecution … well, since we got so delayed obviously we can’t start the trial in like the first week of September or mid-August. But after talking to people watching the case closely it’s pretty clear that is not the case. When the appeal is concluded it’s back to business, regardless of when that is. Even the informal rule about election-impacting indictments in the final days of a campaign doesn’t apply here. That is about new things — an investigation coming to light, an indictment being brought. And the rationale there is to guard the political process from a rogue investigator dropping a new charge or charges-in-the-making too late for the candidate to have any chance to answer those charges or clear their name. It doesn’t apply here.
Now it is not only possible but basically guaranteed that Trump’s lawyers will toss out a bunch of other last gasp efforts to wriggle out more delays. It’s possible that the Supreme Court could do something wildly unexpected and decide that former presidents are in fact immune from prosecution — or simply sit on the case and keep it in suspense through Election Day. But the Court has shown clear limits in what it’s willing and not willing to do for Trump. And those possibilities seem decidedly outside those bounds. Of course some of those longshot delay tactics may eek out a few more days or weeks. But as we see in court this week, eventually you can’t put it off anymore. So we need to be thinking about not the possibility but I think the high probability that the meat of the 2024 presidential campaign — essentially Labor Day through Election Day itself — will take place with Donald Trump on trial for trying to overthrow the American Republic in a courtroom in Washington, DC.
It’s hard for me to say whether this is better or worse for Trump than a trial over the summer in which he is convicted and in the process of being sentenced. But I’m pretty sure it’s not great. And I’m not sure it’s any better. As we are starting to see, being on trial isn’t just another stage of the process or some abstract concept. It’s very concrete and has a dynamics and atmospherics all its own. And while I don’t know their precise impact I do not think they are good for the candidate in the dock.