The Trial of the Century Will Begin . . . Later

T here was some breathless commentary this week about the fact that the proposed March 4 trial date in Biden special counsel Jack Smith’s election-interference case against former president Donald Trump has been removed from the court’s calendar. In fact, this is just an administrative recognition of what, for weeks, has been an inevitable postponement.

I explained a few weeks back that the former president’s strategy has been “delay, delay, delay.” The immunity issue, on which (as this is written) we are still awaiting a decision from the three-judge D.C. Circuit panel, is more important to Trump because it was appealable pre-trial than because of the substance of his immunity claim (which is unlikely to prevail — indeed, the case is on appeal because the lower court already ruled against the former president). To repeat, when a case is on appeal, jurisdiction over it is transferred to the appellate court, which means the district-court judge — here, Judge Tanya Chutkan — cannot act on it.

As I related at the time, Trump’s gambit in seeking a contempt citation against Smith was not a serious contempt effort; it was a serious effort to have Judge Chutkan acknowledge that the case is frozen in her court. That is, there are to be no motions, no substantial matters addressed, and no expectations that the Trump team is using the delay to prepare for the eventual trial. (Logically, if there is immunity, then the constitutional offense is not merely to convict the immune official but to subject him to the prosecutorial process in the first place.)

In his effort to further delay the process, Trump has now prevailed. Chutkan has formally held the case in abeyance despite Smith’s attempts to nudge it along in hopes of getting Trump convicted before Election Day. It is frozen — potentially, not just through the panel’s consideration of immunity, but for as long as it takes to get through any additional appellate moves, such as a motion for reconsideration en banc (by the full eleven-member Circuit Court) and an application for Supreme Court review (a petition for certiorari).

Chutkan, an Obama appointee whose disdain for Trump is barely concealed, has seemed as anxious as Smith to get to trial, over the Trump camp’s strenuous objections. (Trump, naturally, wants the trial put off until after Election Day; if he wins the presidency, his Justice Department will then dismiss the indictment — and if the court fights him on that, he can always pardon himself.) Nevertheless, even if we assume Chutkan is chagrined by the delay, it cannot have been a difficult decision for her to acknowledge its ramifications. Not only is it the law; the judge knows there is an even more consequential issue brewing.

The Supreme Court granted certiorari to several January 6 defendants who challenge the Justice Department’s use against them of an obstruction statute (§1512(c)(2)  of the penal code) that they claim is unconstitutionally vague. Although Trump is not a party to that appeal, the obstruction at issue is central to Smith’s case against him — two of the four charges are obstruction counts, and they are the most serious in terms of potential imprisonment.

As a practical matter, even if the immunity issue were not tying things up at the moment, Chutkan could not have started a trial on March 4 under circumstances in which the Supreme Court’s guidance on the main charge is not expected until mid-to-late June. Moreover, if the high Court were to restrict prosecutors’ use of §1512, and if in doing so the justices were to remind prosecutors (as they did last term) not to stretch criminal statutes in extravagant ways (as Smith has also done in dubiously charging Trump with fraud and civil-rights violations), it might be necessary for Smith to overhaul his case.

Of course, that is Trump’s dream scenario, and there’s a good chance it won’t go that way. Perhaps Smith won’t have to tinker with his case at all, or maybe whatever the Court says about obstruction will call for only minor adjustments. Even so, it is difficult to imagine how this two-to-three month trial could start prior to mid-summer — and even that may be 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 above-linked 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. (The Biden Justice Department is still arresting people in connection with the Capitol riot — in addition to the over 1,200 already charged. This is putting great strain on the D.C. district court’s resources.)

Beyond that, my friend Bill Shipley, a sharp former prosecutor who has defended a number of the January 6 cases and is very familiar with litigation practice in the D.C. district court, was ahead of the crowd when he explained on X/Twitter this week how the difficulty of seating of a jury in a trial like this factors in.

This is apt to be the highest-profile case in modern American history. As Bill points out, the parties will have to vet hundreds of potential jurors — maybe a thousand or more. To do that, the court must send out extensive questionnaires to potential jurors, which the lawyers vet under a court-supervised process; that way, when the trial begins, the parties can proceed with voir dire, strikes for cause, and discretionary (“peremptory”) strikes without undue delay. In order for that to happen in a trial scheduled to begin March 4, the questionnaires would have to have been sent out weeks before. Moreover, among the most important questions asked of prospective jurors would be: Are you available to serve as a juror for two-to-three months beginning on March 4? That is, if the trial date is unknown, it is pointless to send out the questionnaires; and if the questionnaires cannot be sent out well in advance, the trial can’t start on time. There is no getting around that.

This is why I am saying that even a midsummer start date for the anticipated trial would be ambitious. Does it eventually get so late in the election-campaign calendar that it would be too unseemly to start trial? I would hope so. 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?

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.