Could the J6 Trial Go First?

Special Counsel Jack Smith.
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In recent weeks I’ve written a number of posts looking at the possible schedule of Trump’s various criminal trials next year. (We now have three cases of the four we’ve expected. The fourth in Atlanta is likely to come this month.) In those posts either I or readers have suggested either that the January 6th case is likely to come after the Mar-a-Lago documents case or that neither trial is likely to be held prior to the 2024 presidential election. But several recent events — most but not all of which we learned about yesterday — throw those assumptions into some doubt.

Before we get into this, a general disclaimer. The earlier assumptions and the new ones are both largely conjectural. I don’t want to make either sound certain or set in stone. Think of these more as new developments that may shift likelihoods.

The first is the indictment itself. One possible reason not to charge the alleged co-conspirators is that it makes the case simpler to bring to trial. This is for a host of reasons. We’ve already seen small incremental delays in the Florida case as Trump’s two codefendants have been unable to find lawyers. It’s also possible that Smith needed more time to prepare cases against the unnamed co-conspirators. But if that’s part of the goal, it equally suggests a focus on moving expeditiously on charging and bringing Trump to trial. He could have waited and brought all the charges at once.

Smith also seemed to focus on avoiding elements of the coup that raised serious constitutional or evidentiary complexities. That’s probably an effort to avoid giving Trump more plausible defenses. But it also likely removes some obvious potential sources of delay.

The other issue is the judge. We’ve already seen reports that Judge Tanya Chutkan has taken a very no-nonsense and tough approach to January 6th cases. We can’t infer from that that she’ll be unfriendly to Trump or make a point of trying to get the case to trial quickly. But it does seem to rule out the scenario in which Trump drew another judge like Aileen Cannon who would be providing Trump a zealous defense from the bench.

Along with this there are other aspects of the Mar-a-Lago case — especially the need to get various lawyers approved to view classified materials — that make it a legitimately complex case and one prone to delays even if you had a judge less willing to betray her oath than Judge Cannon.

Taking all these factors together, there seems to be a lot of grounds to argue that the January 6th case can and should go before the Mar-a-Lago case.

The final piece of the puzzle is Alvin Bragg, the prosecutor in New York City. In recent days he anticipated these questions by suggesting that he would be open to delaying his trial, currently scheduled for next March, to accommodate the January 6th case.

I want to emphasize again these points are mainly ones I’ve gleaned listening to legal and trial experts who I find reliable. They’re all tentative. It’s possible I’ve misconstrued some of them. But there does seem to be some shift in assumptions about how this will shake out next year.

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