Timing could benefit former President Donald Trump as he faces down four criminal trials that are mired in controversy and legal obstacles while Election Day 2024 creeps closer, legal experts say.
"Does it eventually get so late in the election-campaign calendar that it would be too unseemly to start trial? I would hope so," former assistant U.S. Attorney for the Southern District of New York Andrew McCarthy, a Fox News contributor, wrote in an op-ed for National Review on Saturday.
"The administration of justice in criminal cases is an important national priority, but it’s not the only one – or, necessarily, the highest one. How much intrusion on politics by the justice system should Americans tolerate – particularly under circumstances in which the intrusion is being orchestrated by the administration of the incumbent president against his campaign opponent?"
McCarthy’s op-ed was in response to a federal judge suspending Trump’s trial involving Special Counsel Jack Smith’s 2020 election interference investigation indefinitely last week, after it was set to begin on March 4. The move comes after Trump’s legal team filed an appeal arguing he is granted immunity from prosecution for actions in office.
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"A president of the United States must have full immunity, without which it would be impossible for him/her to properly function," Trump said last week on Truth Social in all caps. "Any mistake, even if well intended, would be met with almost certain indictment by the opposing party at term end. Even events that 'cross the line' must fall under total immunity, or it will be years of trauma trying to determine good from bad."
An appeals court is reviewing Trump’s argument, tying the presiding judge’s hands from proceeding with the case. Trump filed an appeal in December, with a three-judge panel hearing arguments last month. No opinion has yet been issued, and the case could be sent to the full circuit court or Supreme Court for review, which would add additional time to proceedings.
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McCarthy has been arguing that Trump’s trial strategy is "delay, delay, delay," adding that after the postponed trial, a midsummer trial date for the D.C. case is "ambitious"and will likely be closer to Election day.
"The election-interference prosecution of Donald Trump, the former president and likely Republican presidential nominee, by the Justice Department of Joe Biden, the incumbent president and Trump’s likely Democratic opponent, is the most politically charged in American history," McCarthy wrote in a January column for National Review.
He argued Saturday in a column that the delay of the trial did not come as a shock, and only solidified what had long been anticipated due to Trump’s appeal. In addition to the appeal potentially being heard by the full 11-member Circuit Court or Supreme Court, pre-trial work could hold up the trial even longer, making a midsummer trial date "optimistic."
"Why? Because there is a lot of pre-trial work, including administrative detail, that must be attended to for a case to get to trial. As I elaborated in my [January column] about Trump’s delay strategy, the pre-trial process includes discovery, motions to dismiss the case or suppress evidence, hearings on motions, and so on. Whenever jurisdiction is finally returned to Judge Chutkan, all of that will have to crank up again – it takes a long time to get through, and it’s not like this is the only case on Her Honor’s docket," he wrote.
McCarthy speculated whether the courts would allow the anticipated GOP nominee to languish in courtrooms for weeks as Election Day comes down to the wire.
"Defendants have to be present in court for the entirety of criminal trials. Could we really have the Republican nominee stuck in a courtroom from, say, August through October? I’m sure that would be fine with the Biden Justice Department’s special counsel. The question may be whether the court will go along," McCarthy concluded.
The former assistant U.S. attorney told Fox Digital that Jack Smith "will push to go to trial in the Washington case no matter how late in the election campaign calendar it gets," but noted Smith’s not in the driver’s seat when it comes to determining schedules.
"But when the trial gets scheduled is up to the judge, not the prosecutor. The question will be whether the courts are content to be perceived by half the public as part of a partisan scheme to get Trump tried and convicted prior to Election Day," he said.
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In his op-ed, McCarthy also cited former prosecutor Bill Shipley – who has represented a handful of separate Jan. 6 cases – pointing to his X posts explaining it would be wildly difficult to seat a jury in the D.C. case. The courts will need to vet hundreds of potential jurors, including sending out questionnaires weeks ahead of the trial. That process cannot begin without a trial date, as the top question asked of jurors is whether they are able to serve for a two- to three-month period beginning on a certain date.
Shipley checked "scores" on Trump’s legal battles last week, and argued that cases against Trump in Georgia, Florida, D.C., and the New York Stormy Daniels case have been hit with legal obstacles and issues that benefit Trump.
Shipley told Fox News Digital on Sunday that it "has been only 26 days since the Trump immunity appeal was argued," and that the "average time between argument and opinion was 116 days," meaning the appeals court will likely issue an opinion on his immunity appeal on May 12.
"There is no legal basis for the proposition that Trump's case should be decided ahead of other Circuit Court cases that were argued before Jan. 9. Delays in appeals courts routinely force trial dates to be pushed back. The fact that it has happened to Trump's trials means the appeals court is handling it like it would any other case," he told Fox News Digital.
In New York, Trump is accused of allegedly falsifying business records to conceal hush money payments to porn star Stormy Daniels during the 2016 election. The trial for that case is tentatively scheduled for March, meaning it would be the first of Trump’s four high-profile criminal trials following the postponement of the D.C. case.
"Those are misdemeanors my good sir, and the statute of limitations expired in 2021," Shipley wrote on X of the hush money case. Trump’s attorneys also noted last year that the statute of limitations would typically be subject to a five-year statute of limitations. New York, however, extends the statute of limitations if a defendant "was continuously outside this state."
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McCarthy told Fox News Digital that after the postponement of the D.C. trial, it's unlikely that Democrats will first head to trial against Trump in the New York case, as it’s "nakedly political" – but noted the door is open to that possibility.
"It’s hard for me to believe Democrats want to go first with that trial: It’s such a ludicrous case that Trump could get acquitted, even in Manhattan; and if he gets convicted, it’s such a nakedly political prosecution that he won’t be hurt much by it," he said.
Trump was also charged in Georgia with allegedly attempting to overturn the results of the 2020 presidential election, which has recently been mired in controversy after the Trump team claimed District Attorney Fani Willis was having an affair with one of her top prosecutors.
Willis admitted last week to having a personal relationship with the special prosecutor she hired, Nathan Wade, but denied the "salacious" allegations against her having "merit."
Trump’s team is calling for the prosecutors to be disqualified and his charges dismissed. No trial has been set in that case.
In Florida, Trump was charged for allegedly mishandling classified documents following his presidency, and is scheduled to face trial on May 20. The case may be postponed, however, with the presiding judge – a Trump nominee – saying she’d revisit the date during a March 1 hearing.
Shipley also noted that having the presumed GOP nominee sit in courtrooms instead of campaigning late in the election cycle would be unprecedented, and has long speculated that Trump’s federal trials wouldn’t begin until after the start of August.
"For several months I have been taking it at face value that no trial in either federal case would begin after Aug. 1. Both cases are expected to take 2-3 months, and trials in the Aug-Oct time period would be right in the middle of the general campaign. Trump would be required to sit in a courtroom in Washington DC rather than – as the nominee of a major party – be out doing the usual kind of campaign events," Shipley wrote on Twitter.
In December, Smith’s authority in the federal cases even came into question after former Reagan administration Attorney General Edwin Meese filed an amicus brief with the Supreme Court arguing Smith’s appointment as special counsel wasn’t lawful and thus he can’t prosecute Trump. Attorney General Merrick Garland appointed Smith to the position as he was working as a private citizen, with Meese arguing he should have been selected by the president, then confirmed by the Senate and working within the Justice Department to serve as special counsel.
Trump has repeatedly defended his innocence in the four cases, calling the charges a "witch hunt" at the hands of Democrats who seek to silence him.
"Deranged Jack Smith, Letitia ‘Peekaboo’ James, Alvin Bragg, the J6 Committee of Political Thugs (who have deleted and destroyed all evidence and findings), and all of the rest of the Biden prosecutors and ‘bad people who hate our Country,’ are just as guilty as Fani Willis. It’s Biden Investigations for purposes of ELECTION INTERFERENCE," Trump wrote on Truth Social last week.
Amid the legal battles, Trump is also on the campaign trail. He holds a commanding 26-point lead in South Carolina over Nikki Haley, who served as governor in the state from 2011 to 2017, according to a Monmouth University-Washington Post poll. The state’s primary will be held on Feb. 24. Trump previously won the Iowa caucuses, as well as the nation’s first primary last month in New Hampshire.
