Now that a D.C. grand jury has indicted his biggest case, special counsel Jack Smith has one primary concern: He wants the trial over Trump’s efforts to overturn the 2020 election set before the 2024 election.
In fact, he surely wants it set before the 2024 presidential campaign reaches full intensity, so before the Republican nominating convention in July. There’s a problem, though: Trump’s schedule is already overloaded with criminal and civil trials.
There is one clear opening in the quickly filling calendar of 2024 Trump trials: late February 2024. Let’s look at the background and the calendar.
Trump is now the criminal defendant in three indicted cases:
the New York “hush money” case to cover up his tryst with Stormy Daniels;
the new indictment about overturning the 2020 election via destabilizing lies about election fraud, a fake elector scheme, and pressure on Mike Pence to unlawfully reject the election certification and deprive the majority of Americans of their vote; and
the Mar-a-Lago case about national security documents and seeking to delete security camera footage to obstruct justice.
If you need help keeping them straight, here’s the shorthand: “sex, lies and videotape.”
A fourth indictment in Fulton County, Georgia, will likely be announced in the next week or two. It is over Trump’s fake elector scheme there and over his attempted interference with that state’s election.
If the expected indictment includes a state Racketeer Influenced and Corrupt Organization charge, we may need to extend the shorthand to “sex, lies, videotape, and racketeering.”
But the already indicted criminal cases aren’t all that are dotting the trial calendar. In addition, already set for the coming months are three civil trials.
One is the state of New York’s civil fraud trial against Trump and his businesses, which seeks at least $250 million in damages. A second is E. Jean Carroll’s second defamation case against Trump, the one over his denial, while he was still in the White House, that he even knew her, following her coming forward with the fact that he sexually assaulted her. A third is a federal class action initiated back in 2018 over an alleged pyramid scheme to defraud investors before he became president in 2016.
The first is set for Oct. 2. The second is set for Jan. 15. The third is set for Jan. 29.
Meanwhile, the Manhattan criminal case is scheduled to begin on March 25 and the Mar-a-Lago classified documents case is currently set for May 20. Notice the two-month interlude between the third civil trial and the first criminal trial.
Now suppose you’re Jack Smith.
In the newly indicted Jan. 6 case, your immediate goal is to vindicate the public’s speedy trial rights. Prompt resolution is needed to resolve allegations that a president—and the current front-runner for one of the two major parties’ next presidential nomination—attempted to steal an election and interfere with our most sacred political institution, the lawful and orderly transfer of power.
We fought a war for independence in 1776 and the years that followed to prevent any person from declaring himself a king. Federal District Judge Tanya Chutkan, who has been randomly assigned the case, wrote in November 2021, in denying Trump’s claim to block the House Jan. 6 committee’s subpoena for Trump’s White House documents, that “[p]residents are not kings.”
To state what’s obvious to all who are paying attention, Trump sees his self-interest in delay. He hopes to be reelected president and have his Justice Department quash all criminal proceedings against him, or issue a self-pardon. Notwithstanding that dangerous hope, the former president has the right to speedily contest the charges and vindicate himself in a court of law.
And so we come to the obvious window of opportunity in the current schedule—the last week of February 2024. It falls between the Jan. 29 civil trial for defrauding investors and the start date of the March 25 New York criminal trial.
Is three weeks enough to complete the January 29 investor fraud trial? Both sides originally estimated that it would take two to four weeks. And that was before May, when the plaintiffs stipulated to dropping Trump’s three children from the case, “in order to streamline and focus the issues to be adjudicated at trial.”
Hence, a three-week estimate seems reasonable, with the trial ending before Monday, Feb. 19. If another week is needed once that trial begins, the criminal case over the D.C. grand jury’s Jan. 6 indictment could move its start back to Feb. 27.
That indictment has been streamlined to compress the time to try it, likely allowing it to finish in four weeks, before the New York criminal trial begins on March 25. Smith will provide all discovery materials in the Jan. 6 case posthaste, as he did in the Mar-a-Lago case.
But unlike that case, the Jan. 6 trial will not involve the intricacies of the Classified Information Procedures Act and the necessary security clearances for lawyers that are required to view classified documents.
Conceivably, if Smith’s Jan. 6 trial goes more than four or five weeks, the March 25 trial date for the New York prosecution might have to move back a week or two, something that happens frequently on trial calendars because of other litigation. Fortunately, that case currently would still have approximately six weeks to finish before Trump’s Florida trial for obstruction and violating the Espionage Act is set to begin on May 20, if that date holds.
Of course, Trump can be expected to complain about not being able to prepare properly, with so many back-to-back trials. Presiding judges will need to look at the facts in each case in order to balance the government’s right to a speedy trial, the defendant’s due process rights to adequately prepare, and the reality of the presidential campaign, something that Trump has chosen to engage himself in.
If it boils down to Trump’s choosing between preparing for trial and campaigning for president, a federal district court judge like Chutkan will prioritize Trump’s obligation to the law over electioneering. For the time being, the settings can proceed with awareness that later flexibility may be required.
What’s interesting, though, is the dilemma that the cascading cases may create for Trump if the Jan. 6 case is set for late February. In the Mar-a-Lago case, Trump’s lawyers asked first that no specific trial date be set at all, then fell back to asking that it occur after the election, reflecting their client’s desire for delay. As the May 25 date approaches, were Trump to succeed in moving the Florida trial start date back to June or later, it would open up May for the Jan. 6 case if more time is needed for that case.
That is not something Trump would want.
And while Smith may oppose any delay of either trial, if he had to choose one of the two to try before the election, it would surely be the Jan. 6 indictment. It’s the one with the greatest historical significance and the one that surely holds the most meaning for Americans.
Although the evidence against Trump in the Florida case is beyond overwhelming, the evidence in the masterful new indictment about his efforts to overturn the 2020 election is also powerfully inculpatory. And there is less likelihood in a D.C. trial that an aberrant, true-believing Trump juror would hang the jury by holding out for acquittal even if the evidence justifies conviction.
Expect Smith to move quickly for a late February 2024 trial date for the Jan. 6 case.
