Usually elections turn on policy, identity, the economy. This time it’s trial dates and whether they matter.
Trial Dates, Accountability and the 2024 Ballot
Originally Published: July 21, 2023 12:59 p.m.
As you can see, Trump Judge (in every sense) Aileen Cannon has scheduled ex-President Trump’s documents case trial for May 2024. This wasn’t as soon as prosecutors wanted. But Cannon rejected Trump’s request for an indefinite delay until after the 2024 election. I wanted to share some thoughts on what this all means for the rule of law generally as well as for the 2024 election.
I was corresponding this morning with a former federal prosecutor who sees this decision as a significant win for Trump on this reasoning: We assume that in the coming days or weeks federal prosecutors will indict Trump for felonies tied to January 6th. Now we have two federal trials in addition to the state trial in New York and a likely one in Georgia. By scheduling the trial in May, Cannon has left very little time to schedule a January 6th trial prior to the May/documents trial. A federal judge in D.C. would be quite unlikely to schedule the two federal trials at the same time. That leaves it highly likely that the January 6th trial gets scheduled after the May 2024 documents trial.
So far so good.
Trump faces two federal felony trials in the meatiest part of the presidential campaign season. But remember, the May date is essentially a placeholder. It is subject to as many delays or reschedulings as Cannon wants. Here’s the key point. If the J6 trial is scheduled after the documents trial, Cannon is now, in practice, in charge of the scheduling of both trials since delays in the documents trial will force delays in the J6 trial. Put that all together and the shifty gimbus judge in Florida now has it within her power to push both trials past the November election.
Surely you’re saying (or I was saying), a federal judge in D.C. must have it in their power to say, nice try, Aileen, we’re scheduling this shit in February! Probably not, says our former federal prosecutor reader. Federal judges can basically do whatever they want. But the normal procedure is to defer to the judge who has the first case scheduled. In departing from that, the D.C. judge leaves him or herself wide open to (not unreasonable) arguments of bias against Trump.
We hashed this out among the editors here at TPM. And the logic as far as it goes is pretty sound. Two thoughts that came up in that discussion. One is that we’re not sure Cannon is quite that strategic, whatever the net effect of her decision. The second is that there are so many moving parts to this federal criminal procedure election that it’s just very hard to game. So many things are happening you just have no idea how they’re all going to play out and interact with each other.
But here’s my extra-judicial take on all this.
First, there’s a tendency many of us have, in spite of ourselves, to imagine that Trump is winning and somehow living his best life even as the world is collapsing around him. It’s worth resisting that tendency.
Second, and much more importantly, a lot of us have the idea that the judicial process is going to short circuit the 2024 election. Trump’s degenerate reign over the American political world ends with conviction and incarceration. But that premise is fundamentally flawed. The outcome of these trials is inextricably tied up with the outcome of the 2024 presidential election.
Let’s say one or both of these trials results in a conviction before January 20, 2025. I don’t care how federal criminal procedure works. Those indictments and/or convictions will disappear within days of Trump’s inauguration if he wins.
In other words, I don’t think the timing of the trials or verdicts matters as much as we might think. It’s true that it would be better to have the trials and have a newly inaugurated Trump disappear them than to have them never held at all. But that’s a bit more of a moral victory than I have an appetite for. What it all comes down to is that you have a judicial and an electoral track. They may move in parallel. But a Trump victory on the electoral track will inevitably cancel a Trump defeat on the judicial one. The salient point to take from this is that Trump’s fate rests ultimately on the outcome of the election.
Does anyone imagine that Trump is convicted in either of these cases and the next morning we hear him say, “well, this is serious. Obviously I need to drop out of the race.” The very idea is absurd on its face. He’ll be out on appeal at least well into 2025. Nothing really changes other than maybe a couple days of handwringing from Mitt-curious GOP grandees.
I will note that one of our editors thinks that we shouldn’t at all rule out an eventual plea deal. If Trump thinks conviction is likely in either or both of his cases, quite a lot starts resting on the outcome of the election. Is Trump really willing to put that to a roll of the dice? Is he really ready to risk serious jail time on the chance he gets reelected? Maybe not. Maybe there’s a global deal which involves admission of guilt and bowing out of the election in exchange for reduced punishment.
I find this set of facts a bit hard to imagine. But perhaps I should take it more seriously. For all his bluster there’s no doubt that the prospect of prison terrifies Trump and he’d do literally anything to avoid it. I think he’d wear a diaper and beg Joe Biden’s forgiveness if that’s what it took to escape that fate.
In any case, I don’t think even that turn of events changes the basic salient point: the trial schedule isn’t as make or break as we might think because the judicial process won’t short circuit the election. Joe Biden will face Donald Trump. Unless Trump cuts a deal, accountability for his many crimes will be decided at the ballot box.