Election Factor Two: The Criminal Trials of Donald Trump

Indictments in four jurisdictions threaten to upend the election and could factor heavily into its outcome

Photo: Seth Wenig / AP

This is Part Two of my series on major factors in next year’s presidential election.

The year 2024 will be historic for at least one undeniable fact: The leading GOP candidate for president has been indicted in four jurisdictions (so far) and faces 91 federal and state criminal counts. 

In a normal election cycle, even a single indictment would be disqualifying. After all, in 2016, the mere reopening of a criminal investigation into Hillary Clinton’s private email server by the FBI, just weeks before the election, was enough to throw the race to Trump, even though there were never any charges nor any finding of criminal wrongdoing.

How times and standards change in just eight years.

The array of charges, jurisdictions and cases against Trump make for a dizzying kaleidoscope and render any analysis a bit complicated, with a number of assumptions, caveats and conditions. But that doesn’t mean we shouldn’t at least try to lay out the larger picture, analyzing what we know of the trial schedules, state of the cases, and likelihood of a result prior to the election.

One way to do this is to ask the hard questions and walk through how we might arrive at some answers. You’ll appreciate, as we open each can, that there are myriad worms inside each. So here are a few for us to tackle today, based on questions that readers frequently ask me:

1. Will there actually be a Trump trial before the election?

2. When will it likely occur?

3. What are the chances of a conviction?

4. Would a conviction change the course of the election?

Told you these were biggies! Let’s proceed.

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Will there be a Trump trial before the election?

If you’re a regular reader here, then you know that the primary legal threat to Trump—the federal January 6 case in D.C.—is on hold. That’s because Trump has raised a threshold legal question over his claim of absolute presidential immunity from criminal prosecution for acts conducted within his official capacity. Ultimately, the Supreme Court will need to decide this (or decide not to decide it), and the case can’t really move forward until then.

Jack Smith’s office didn’t seem to get that memo, however. Or perhaps he’s simply ignoring it. On Wednesday, prosecutors filed papers before Judge Chutkan seeking to limit the kind of evidence Trump can present at trial. I’ll address the merits of his arguments another time, but for today’s purposes, this is fascinating in a different way: Smith wants to keep the case moving forward and is signaling he is preparing for trial and that March 4 start date. 

Trump’s lawyers are likely to go ballistic at the move, because the judge has indicated that there is a general stay on the case. “Cool, cool,” said Smith, “but I’m turning in my homework anyway.” 

Currently, legal observers have eyes on the D.C. Circuit, which will hear the first appeal from Judge Chutkan’s ruling denying Trump’s claim of absolute immunity. That’s set for January 9, 2024 on a hurry-up briefing schedule. From there, it’s up to the appellate courts, especially the Supreme Court, to let us know if the case is going to move forward or stay stuck for a long time. 

The possibilities range from an immediate denial of review, which could conceivably preserve the March 4 date or push it back by only a few weeks, to a lengthy review process, which could push any ruling out till summer or even later, which would jeopardize the chances of a pre-election conviction of Trump in D.C.

At this point, it’s important to remember that the D.C. case is just one of four cases. And, although it’s barely talked about these days, there’s a case a in Manhattan where a grand jury of New Yorkers delivered the first indictment against Trump for false business records violations around his hush money payments to Stormy Daniels. 

The trial date for that case is set for March 25, 2024. That’s fast approaching. There are two things to understand here: 1) If the federal case in D.C. does get bumped, then in theory, Manhattan D.A. Alvin Bragg’s trial can proceed because there is no conflict in the calendar, and 2) no claim of “absolute presidential immunity” by Trump is going to stop it from moving forward because the alleged criminal behavior took place before Trump was president.

Think of the Manhattan case as a kind of backstop for justice.

But what about the Mar-a-Lago classified documents case in federal court in Miami? I wouldn’t hold my breath here. Judge Cannon has shown she is in no real hurry to move that case forward, making the May 20, 2024 trial date nearly impossible to meet. Already, she has pushed back the process for clearing review of classified information, from its original October 2023 timeframe to February 2024. That delay of some four months almost certainly means the trial will not begin as originally scheduled in May of 2024. 

If it does begin four months later—in September 2024—it will be smack in the middle of the heat of the election. I could see Trump urging Judge Cannon to push it off until after the election because it “interferes” too much with his campaigning. And I could see her agreeing. Note that Trump doesn’t have a claim of immunity with respect to these charges either because in this case, all of his alleged illegal behavior took place after he left office.

Trump’s immunity claim, however, could hold up the Georgia RICO case. If the Supreme Court does not resolve the matter promptly, Trump’s attorneys could file a motion to stay the case with respect to him while the immunity question is sorted out. This motion might persuade Judge McAfee in Fulton County to order a stay, just as it did Judge Chutkan in D.C.

Bottom line: If the Supreme Court moves relatively quickly, we could still see a federal trial for January 6 election-related conspiracies against Trump before the election. But if the Supreme Court drags its feet, we likely will still see Trump face criminal charges first in Manhattan, with the rest up in the air.

When will the trial(s) likely occur?

It’s highly likely that the March 4, 2024 date first set by Judge Chutkan for the D.C. trial will be bumped back. Even if SCOTUS moves quickly, the soonest we could have a decision on immunity would be the end of January, and that’s really pushing it. This means a minimum loss of some six weeks of trial preparation time. It would make sense to tack that period onto the original start date, assuming Judge Chutkan meant what she said when she placed a stay on the case. 

Doing the math forward, we would be looking at a mid-April start date for the D.C. trial at the soonest. Much more likely is a late May or early June trial date, if I had to give my best, and even somewhat optimistic, guess.

That said, I currently see no reason why the Manhattan trial date of March 25th can’t hold. With no other trials in the way, we might be grateful that Trump will face at least one jury of his peers before he has completely sewn up the GOP nomination.

We should keep in mind that primary voting by Republicans will largely be completed by the time the NY trial gets started. By March 25, 2024, around 70 percent of Republican delegates will already have been awarded. And Trump will have received nearly all of them, barring a big upset in New Hampshire or South Carolina ahead of Super Tuesday, because of the GOP’s winner-take-all method of conducting its state primaries. (Nikki Haley could conceivably pull this off, but it still might not matter.)

If the Florida case is bumped by at least three months, we can assume that Judge Cannon, who is Trump-friendly in her calendaring and rulings, will decline to set a new date before the election. But interestingly, that would open the door to, say, an August trial date for the Georgia RICO election case, following on the heels of a summer D.C. trial. And it so happens, August 2024 is exactly the timeframe District Attorney Fani Willis has requested. (She has no doubt also looked at the calendar and concluded that that is her best window. Whether she will receive that date has yet to be determined.)

To sum up, a Trump criminal trial calendar in 2024 might look something like this:

March 25, 2024: Manhattan business records fraud trial

June 2024: Federal January 6 conspiracies trial

August 2024: Georgia state RICO trial with other defendants

Nov/Dec 2024: Mar-a-Lago classified documents trial

What are the chances of a conviction?

I normally use two words to answer this question: very high. That is based on basic math and the track records of federal and state prosecutors. Over 90 percent of cases (and sometimes in the high 90s depending on the office) brought to trial by prosecutors result in convictions. Do that three times sequentially in 2024, and the chance of zero convictions grows quite low, at around 1 in 700. 

Add to that this wrinkle: Trump has some defenses in law but not very good ones on the facts. If Trump is to escape conviction, he will likely need some kind of favorable ruling on an issue of immunity, the Supremacy Clause, or some version of “you impeached me already, you can’t try me now.” None of these is very strong, but they could delay the trial or set up appeals to keep him out of prison while they are pending, even after a conviction.

But on the facts, Trump has fewer ways out. Nearly all the evidence that prosecutors will bring to bear is physical or documentary in nature, or comprises damning testimony directly from one of Trump’s former GOP underlings. Trump will either need to take the stand in his own defense (a bad idea, but this is Trump) or his lawyers will have to somehow convince the jury that other people’s notes, emails and memos don’t contain the truth. And that’s a tough sell.

But what about MAGA loyalists? Couldn’t one of them get on to a jury and deadlock it? 

There’s always a chance for courtroom mischief. Prosecutors will be on the lookout for jurors who might be “stealth MAGA partisans” willing to defy the evidence and their own oaths. But a deadlocked jury is not an acquittal. Trump can be retried, and he likely would be. But more importantly, we haven’t seen juries deadlocking in D.C. over January 6 defendants. Instead, they have been handing down conviction after conviction. The Justice Department has had over a year of practice obtaining guilty verdicts from D.C. juries over January 6.

Moreover, Trump isn’t likely to get a warm reception from jurors in the first two cases, which are in Manhattan and D.C. Trump realizes this and has been railing nonstop about the injustice of having to face criminal trials before juries pulled from solidly blue, urban areas. The response here, of course, is simple: If you don’t want to face juries in Manhattan and D.C., don’t commit crimes there.

My prediction is for a conviction in Manhattan followed by a conviction in D.C. I’d say the chances are very high. And that’s enough to bring us to our next important question.

Would a conviction change the course of the election?

It’s common, and understandable, to assume that criminal convictions won’t dent Teflon Don, at least in the eyes of his loyal MAGA followers and even GOP voters in general. After all, didn’t his poll numbers among Republicans actually shoot up after the indictments landed? Don’t they really just want him to be as awful, and even criminal, as he can possibly be? And wasn’t Trump essentially correct when he bragged he could shoot someone on Fifth Avenue, and his base would love him more?

Pollsters began exploring this question with Republican voters in light of the upcoming trials. And unsurprisingly, the results are a bit all over the map, but none of it so far spells good news for Trump.

A Reuters/Ipsos poll back in August found that some 43 percent of GOP voters wouldn’t vote for Trump “if he were convicted of a felony crime by a jury.” Since then, Trump has pushed hard on the notion that the indictments are all politically motivated and therefore illegitimate. A more recent Reuters/Ipsos poll, conducted this month, found that some 31 percent of Republicans now said they would not vote for Trump if he were convicted of a felony crime by a jury. That’s a big drop, but it’s still a lot of people.

Some surveys aren’t as dire for the ex-president, including a recent Wall Street Journal poll showing that the swing towards Biden diminishes to only five percent in the event of a felony conviction of Trump. Partisan loyalty is a helluva drug. 

Still, national polls aren’t that useful when it is the electoral college count that matters. For a candidate to reach 270 electoral college votes in 2024, six states will be largely determinative: Pennsylvania, Michigan, Wisconsin, Georgia, Arizona and Nevada. So how do voters in those states feel about voting for a convicted felon?

CNN ran polls in Georgia and Michigan, and in each case nearly half of voters believed that Trump should be disqualified outright if he is convicted of a felony. That of course isn’t the law, and Trump can even run from prison if he wants to. But it does show that voters aren’t too keen on the idea of having a felon on the ballot for the nation’s highest office.

And a NYT/Siena poll in October, one that spooked a lot of Democrats after it showed Biden losing in all swing states except Wisconsin, also revealed that Trump would lose to Biden in all of the swing states due to a 14-point swing after a felony conviction and a sentence. (This poll was taken in the wake of the Gaza attacks, so its conclusion that Biden would lose is likely a snapshot at best. But its data showing a shift from Trump to Biden in the event of a felony conviction and sentence is notable and could be longer lasting.)

Why the big swing? For starters, there are a lot of unhappy, undecided voters at present. They don’t like Biden, and they don’t want Trump. They are even third-party candidate curious, which is the subject of a later factor in this series. Within this somewhat unfocused and displeased group, anything that brings their decisions into clarity will have an outsized impact. Criminal convictions are up there on the list. 

To put this into context, imagine conversations around dinner tables, where someone who was on the fence has to explain in the end why they actually prefer the convicted criminal. You’d have to really hate Biden, not just dislike him or the fact that he is old.

For these reasons, felony criminal convictions of Trump in the spring and then the summer of 2024 could spell electoral catastrophe for Trump and the GOP. If the GOP-dominated Supreme Court better understood this, perhaps they’d prefer a quick resolution of Trump’s federal criminal charges in D.C. so that GOP voters would still have time to pick an alternative. 

The more likely scenario is a quite chaotic one, where the GOP National Convention in mid-July of 2024 presents the spectacle of a party cheering for, and ultimately nominating, a convicted criminal to run against Joe Biden. 

Historically speaking, this wouldn’t be the first time a sizable portion of a country lost its collective mind and chose a wannabe dictator as its standard bearer. Our job is to ensure that enough Americans with good sense and decency refuse to join them.

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