A March trial start in Donald Trump’s federal election interference case is on the ropes — but it’s still possible the trial moves forward then or at least sometime before the 2024 election. The latest factor in this equation is the new case the Supreme Court took up Wednesday, over the obstruction charge used in Jan. 6 cases, including Trump’s.
To understand why, let’s look at the moving parts that have picked up this week.
To understand why, let’s look at the moving parts that have picked up this week.
At the trial level, Trump’s prosecution is essentially on hold while his immunity claim plays out at the U.S. Court of Appeals for the D.C. Circuit and potentially the Supreme Court, a pause that U.S. District Judge Tanya Chutkan made official with an order Wednesday. But Chutkan’s action isn’t the main thing that would stop the case from getting to trial, because she has shown the ability and inclination to move quickly when the case is in her control.
The issue is the things outside of her control — the immunity claim that’s on appeal and the Jan. 6 case the Supreme Court just took up.
Trump’s immunity claim is being fast-tracked in the D.C. Circuit, with briefs due from Trump and special counsel Jack Smith over the coming weeks, through Jan. 2. Meanwhile, Smith is pressing the Supreme Court to step in early to decide the immunity issue, with Trump’s high court response to the special counsel’s petition due Wednesday, after which the justices will decide whether to step in.
Of course, if the appellate courts say Trump is immune from prosecution, then the case is over and there’s nothing to try.
But if he loses the immunity claim, then, putting the new Jan. 6 case to the side for a moment, he’s clear for trial. The appellate immunity litigation could push that trial beyond March, but it doesn’t have to push it past the 2024 election. We just don’t know when the immunity appeal will be resolved at this point.
And that brings us to the latest potential impediment to Trump’s trial: the case of Jan. 6 defendant Joseph Fischer, which the justices agreed to review Wednesday. He’s challenging the government’s use of a federal obstruction law in Jan. 6 cases — which Trump is charged with, too — arguing, as have other defendants, that the government has applied it too broadly to Capitol rioters. If the Supreme Court agrees with Fischer, that could upend other Jan. 6 cases and affect Trump’s D.C. case as well — though, importantly, a favorable ruling for Fischer wouldn’t necessarily kill Trump’s obstruction charges, because the theory of the case against Trump is different from the more ground-level prosecutions against rioters. It would depend how the high court rules exactly.
And that brings us to the latest potential impediment to Trump’s trial: the case of Jan. 6 defendant Joseph Fischer, which the justices agreed to review Wednesday. The point for now is that we don’t know how the Supreme Court will decide Fischer’s case, and the justices might not rule until late June, months after Trump’s currently scheduled trial. Even if the court’s forthcoming decision winds up not affecting Trump, the uncertainty of the outcome can complicate his trial, in addition to the possibility that Trump tries to use the pendency of Fischer’s appeal itself as another means of delay. Aside from the ever-present Trump delay aspect, both the prosecution and the defense need to know the scope of the law at issue in preparing their respective strategies and jury presentations. If Trump’s trial were to go forward and end in a conviction before the Supreme Court rules, and then that high court ruling somehow alters how prosecutors can use the obstruction charge, that could open up Trump’s case to challenge and possible retrial. The Supreme Court could, of course, issue a narrower ruling that doesn’t affect Trump, but that’s one of the open questions raised by Wednesday’s grant of Fischer’s case that might not be settled before Trump is otherwise ready to stand trial. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
Latest Post
Recommended
