The indictment of former President Donald Trump on Tuesday for his role in the Jan. 6 insurrection and plot to interfere with Joe Biden’s installation as president is a critical step in the preservation of America’s rule of law. But, with the likelihood that none of the charges against Trump will be decided before the November 2024 election, it also risks creating a virtual mosh pit of criminal cases.
The scheduling and logistics of a massive trial are challenging. Delay is inevitable.
The societal benefits of prosecuting all aspects of the illegal efforts to overturn the 2020 presidential election are obvious. Wrongdoing is exposed, alleged criminal acts can be evaluated in our judicial system, innocent people can be exonerated, and guilty defendants held liable.
But such a sweeping case creates logistical gridlock. Each defendant may have separate counsel, which can multiply the number of motions and pretrial proceedings. The scheduling and logistics of a massive trial are challenging. Delay is inevitable.
Given that Trump is the leading Republican candidate for the presidential nomination in the polls and Election Day is less than 16 months away, special counsel Jack Smith cannot afford delay.
The new federal indictment of Trump in the District of Columbia may not permit the trial to occur before Election Day. The median time for a criminal felony case to be finished in the U.S. District Court in Washington is nearly 18 months, according to federal statistics as of Dec. 31, 2022. That statistic includes cases in which the defendant pleads guilty.
Eighteen months from now will be after Inauguration Day for the next presidential term.
Trump already is facing a total 40-count federal indictment in Florida alleging his unlawful retention of national defense information and obstruction of justice, as well as prosecution for false entries in business records in New York state court in Manhattan. A fourth indictment against Trump is anticipated before Labor Day from a grand jury in Fulton County, Georgia.
Trump’s lawyers will raise realistic objections to demands that they meet stringent deadlines for pre-trial discovery, motion practice, and trial preparation for four felony cases in four jurisdictions with only minimal overlapping of facts, witnesses and legal issues.
The Department of Justice’s problems have arisen from its own sluggish efforts to investigate Trump’s Jan. 6 involvement before the appointment of Smith last November. The fact that multiple key witnesses were not questioned between January 2021 and November 2022 is glaring evidence of misguided priorities. While federal prosecutors were vigilant as to investigating and indicting the rioters who invaded the Capitol on Jan. 6, they seemed indifferent to investigating those who organized and implemented the conspiracy to steal Biden’s election.
Smith, to his credit, has been proceeding diligently to obtain the evidence leading to Trump’s potential indictment. But that doesn’t solve the current scheduling headaches.
The answer must be that the New York criminal trial scheduled for March and the nascent Georgia prosecution must be held in abeyance until the pending Florida and D.C. federal prosecutions proceed expeditiously.
Smith may be forced to choose whether to prioritize the Florida classified documents prosecution or the new Jan. 6 charges in order to obtain a jury verdict in the next 16 months. Prosecutors already have estimated 21 court days will be needed to complete the Florida trial and Trump’s defense attorney have given a longer estimate of six to seven weeks. In fact, Smith’s decision may not be his to make. Rather, it may be dictated by Judge Aileen Cannon, who has set a trial date of next May in the classified documents case, rather than this December as sought by Smith. The three new counts added against Trump in the Florida prosecution also poses a risk that the May trial date may be jeopardized, as the superseding indictment raises new claims. If Smith is dissatisfied, his team may push the judge assigned to the D.C. prosecution for an earlier date. The choice could be decided by the calendar, rather than by which prosecution is more important or more trial-ready. In any event, giving predominance to the federal prosecutions is the best course for several reasons. Timing is most crucial for the federal cases because Trump, if elected president in 2024, can direct his chosen attorney general to dismiss both cases with prejudice. In that event, Trump could never be held accountable on either set of charges. The New York criminal trial scheduled for March and the nascent Georgia prosecution must be held in abeyance until the pending Florida and D.C. federal prosecutions. Trump, even if president, has no power to dismiss any state court prosecution. Whether a state judge would postpone a trial while Trump was president, the charges would not be permanently dismissed because of any action by Trump. Moreover, the efforts to subvert the outcome of the 2020 election constitutes the most egregious attack on our democracy ever attempted. Even the classified documents case, which involves national security issues, pales in importance to the Jan. 6 attack on our democracy. Attorney General Merrick Garland last November directed Smith to investigate whether “any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College on or about January 6, 2021.” Smith can still fulfill this obligation, by prosecuting individuals separately without Trump. But the priority right now is clear. And there is no time for delay.
Michael Conway
Michael Conway was counsel for the House Judiciary Committee in the impeachment inquiry of President Richard Nixon in 1974. In that role, he assisted in drafting the committee's final report to the House in support of the three articles of impeachment adopted by the committee. Conway is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago. 
