We have all been focusing on the contents of the new special counsel indictment of former president Donald Trump—and rightly so. United States vs. Donald Trump will be the most anticipated trial in this country’s history. But the when is as important as the what. It is essential that this case go to the head of the queue.
Both for our democracy and for the many other cases against the former President—including the criminal ones and the likely coming Fourteenth Amendment challenges to Trump appearing on the ballott should, and in our estimation likely will be, tried first. We believe Judge Tanya Chutkan will order that when she sets a trial day at the first status conference on August 28.
Why does speed matter so much? The American people need to know if one of the likely major party candidates attacked the foundation of our democracy. Although it has long been clear enough that Trump can be convicted for these crimes—as we recently detailed in a Model Prosecution Memo—that is no substitute for a judgment by a jury of Trump’s peers. With Trump being a frontrunner for the presidency, voters deserve to have a verdict about whether he is a democracy criminal to inform their decisions.
But this case is also important due to its impact on other matters. If the prosecution is successful, it will put the winds in the sails of Fulton County district attorney Fani Willis’s and Michigan Attorney General Dana Nessel’s cases in Georgia and Michigan, respectively. It would prove some of the same points those prosecutors are raising about fake electors and the rest, demonstrating that these cases are not partisan “witch hunts,” as Trump often claims. Instead, it would conclusively show that there is sufficient evidence of wrongdoing for a jury to convict, laying a foundation for convictions in those state matters.
And it is not just the criminal cases that a conviction would strengthen. For example, there is a very real possibility that a conviction here will support efforts of others to seek disqualification of Trump from office under Section 3 of the Fourteenth Amendment, which prohibits election to office for anyone who has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
With Trump being a frontrunner for the presidency, voters deserve to have a verdict about whether he is a democracy criminal to inform their decisions.
The indictment is replete with just such allegations, and a conviction would go a long way to supporting a case for disqualification. Whether through existing mandamus or quo warranto actions, state and federal officials—as well as private citizens—can seek to disqualify a candidate who has engaged in insurrection from holding office. Although Trump was not indicted with insurrection, he was charged in the indictment with conduct prohibited under Section 3: giving aid to those storming the Capitol on January 6.
For example, he is alleged to have done so through his tweets that day fanning the flames, such as by targeting the vice president during the violence—and by failing to put out the conflagration. Thus, a jury verdict could be used by those pressing legal action to support the effort to disqualify him from the ballot.
There are therefore many reasons this case should be brought as swiftly as possible. We have handled criminal cases for decades and have had the experience of a so-called rocket docket, cases that can zoom ahead to trial at rapid speed. This one can and should be treated that way.
For starters, there’s Smith’s statement that he intends to seek a speedy trial. He has backed that up by streamlining the case. It’s just Trump who is charged. There are no named co-defendants. That means a drastic paring down of potential legal battles that could otherwise slow down the case.
Next, the charges are simple. That severely cuts down on pretrial battles. By bringing a simple case theory, that means there is likely to be less discovery (and less feuding over discovery), as well as fewer motions to dismiss and regarding evidentiary and admissibility issues. Notably, pretrial appeals in federal criminal cases are a rarity and likely would not be available here—so there’s little risk of a delay on account of an appeal (or appeals) by Trump. In any event, the district court likely would not stay the case were Trump to attempt such a frivolous tactic.
It is essential that this case go to the head of the queue.
The charges here are, moreover, garden-variety ones that are used frequently in the federal system. Conspiracy to defraud the United States (18 U.S.C. § 371) is one of the most commonly charged crimes in the Code book. Obstruction of an official proceeding (18 U.S.C. § 1512(c)) has been used hundreds of times now in the Jan. 6 insurrection. And conspiracy against rights (18 U.S.C. § 241) has often been used to prosecute election fraud. So there are no novel legal theories, and there is a huge trove of precedent from which to draw that will streamline any motion practice.
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Nor will the likely defenses slow the case down much. Trump’s defense lawyer John Lauro previewed them in a round of cable appearances Tuesday. For example, he claims First Amendment protection for Trump’s alleged misconduct. But the former president can’t assert that the Constitution protects him from allegedly criminal acts any more than a bank robber can claim constitutional protection for saying “stick em up.”
Judge Chutkan will make short work of any pretrial motions based on such defenses, and this case can move more quickly than the Florida documents case. That case is currently set for May 2024 but will be the subject of many motions and evidentiary issues, including how classified documents can be used at a public trial.
Indeed, there already appears to be an early trial date available for the new case before the Florida trial. That is because Manhattan district attorney Alvin Bragg has reserved a trial date in March 2024 and suggested he’ll step aside to give his slot to Smith for this matter.
Judge Chutkan will likely be disposed to allow Smith to take Bragg up on that offer. She is already speeding things along, setting an August 28 status conference and announcing that she will set a trial date at that time. Before her appointment, she had decades of experience as a trial attorney and her brisk pace shows it. That experience combined with a tireless work ethic was on full display in her prompt ruling in Trump v. Thompson dealing with some of these same issues—and fast. She has the background and ability to move the case along as briskly as anyone.
Of course, there are no guarantees when it comes to criminal law. So while we cannot be assured of this timing, to us it seems highly likely. That means it’s time for us all to fasten our seatbelts—it’s going to be a speedy ride.
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