By ALANNA DURKIN RICHER and ERIC TUCKER (Associated Press)
WASHINGTON (AP) — Donald Trump’s 2020 election interference case in Washington once appeared likely to be the first of the former president’s criminal trials to begin, with the judge having scheduled a March 4 start date. But appeals of issues central to the case are threatening to change that.
U.S. District Judge Tanya Chutkan on Wednesday put the case on hold while Trump pursues his claim in higher courts that he is immune from prosecution. Chutkan raised the possibility of keeping the March date if the case promptly returns to her court, but it is possible the appeal could tie up the case for months.
Potentially further complicating prosecutors’ effort to go to trial swiftly is the Supreme Court’s review of an obstruction charge used against Trump and hundreds of his supporters who stormed the Capitol on Jan. 6, 2021. Trump’s lawyers have made clear that their legal strategy involves pushing his trial off until after the 2024 election and they could use the Supreme Court’s involvement to try to further delay the case. Trump is the current front-runner for the 2024 Republican presidential nomination.
A look at the legal issues complicating the trial date and the potential political ramifications:
Trump is charged, as are more than 300 people accused of participating in the Capitol riot, with obstruction of an official proceeding, which refers to the joint session of Congress held Jan. 6 to certify Democrat Joe Biden as the winner of the presidential election. The Supreme Court on Wednesday said it would consider a case challenging the use of the obstruction charge against a former police officer who joined the mob at the Capitol.
Trump’s lawyers could try to make the argument that Trump’s case cannot go forward until the Supreme Court rules on the scope of the obstruction offense, which potentially could affect both the obstruction charge and a related conspiracy charge against Trump. His team would have to persuade the trial court judge to agree to the pause.
At least two other Jan. 6 defendants convicted of the obstruction charge have asked to cancel sentencing hearings scheduled for next week and put them off until after the Supreme Court rules on the issue. Under the Supreme Court’s normal schedule, the justices would not hear arguments on the case until late March or April.
David Alan Sklansky, a former federal prosecutor, said he does not think Trump has a good argument for delaying the case while the justices review the obstruction charge. Sklansky, now a professor at Stanford Law School, noted that cases move forward all the time even though they involve laws that are being challenged in other cases.
“If the Supreme Court ultimately decided to interpret the statute that’s an issue in that case narrowly, that could affect whether convictions under that statute in Trump’s case would be upheld on appeal,” Sklansky said. But he said: “It would be unusual to delay a trial waiting for the Supreme Court to decide a legal issue of this kind.”
It’s a word and legal concept that will dominate discussion in the courts in the coming weeks. And it could wind up delaying the trial.
In addition to taking up the obstruction statute, the Supreme Court is also being asked to consider a question with an even more direct impact on the Trump case. It’s one that never has been tested before the justices: Is a former president immune from federal prosecution?
Chutkan rejected the Trump team’s arguments that an ex-president could not be prosecuted over acts that fall within the official duties of the job.
After Trump’s lawyers appealed, special counsel Jack Smith’s team sought a quick, once-and-for-all resolution, asking the Supreme Court this week to not only consider that question but to fast-track a decision so the case can continue along the current schedule.
The Supreme Court has said it would decide quickly whether or not it will hear the case. In the meantime, Smith’s team also asked the U.S. Court of Appeals for the D.C. Circuit to expedite a decision of its own on presidential immunity.
That appeals court late Wednesday agreed to expedite the case, setting deadlines for briefs to be filed between Dec. 23 and Jan. 2. But the appeals court has yet to set a date for when it will hear arguments.
The other criminal case brought by Smith charges Trump with illegally hoarding classified documents at his Florida estate and obstructing FBI efforts to get them back. The trial is currently scheduled for May 20. But the judge in that case has pushed back has multiple other deadlines and signaled an openness to revisiting the trial date during a pivotal pretrial conference set for March.
A separate case on charges that Trump falsified business records in connection with hush money payments to a porn actress is set to go to trial on March 25 in New York state court, but that date isn’t set in stone either. Judge Juan Manuel Merchan, responding to a Trump team request to postpone that trial, said in September that he would rather stick to the original schedule for now and wait until the next pretrial hearing in February to see if “there are any actual conflicts” requiring a delay.
No trial date has been set in Fulton County, Georgia, where the district attorney’s office has charged Trump with trying to subvert that state’s election in 2020. Prosecutors have asked for an August trial date, but his lawyer has said it would amount to “election interference” to stage a trial then.
The trial dates carry enormous political ramifications.
If Trump was the GOP nominee and won election next November, for instance, he presumably could use his authority as head of the executive branch to try to order a new attorney general to dismiss the federal cases or he potentially could seek a pardon for himself — something that’s a legally untested proposition.
Smith’s team is looking to secure convictions and sentences in the coming year before that election. Trump, as a private citizen and not an officeholder, possesses no more power or privileges than anyone else under the law. In a recent filing in the election subversion case, Smith’s team said the “public has a strong interest in this case proceeding to trial in a timely manner.”
Trump’s team has accused Smith of trying to rush the case through for political reasons. Trump’s lawyers told an appeals court this week that “the prosecution has one goal in this case: To unlawfully attempt to try, convict, and sentence President Trump before an election in which he is likely to defeat President Biden.”
Richer reported from Boston.