Trump Wants His Trial To Begin in Two Thousand and Never
It’s Friday, so I’ll keep this on the lighter side. We’ve had enough heavy news for the week.
So let’s talk trial dates. Yesterday, Trump’s lawyers filed their response to Jack Smith’s request for a trial date of January 2, 2024. Even though it shouldn’t come as a shock, the response was still something else to see in print. Trump’s opening bid? April of 2026.
That’s right, Team Trump believes the most important trial our country has ever seen should begin a full one and half years after the presidential election of 2024. After complaining nonstop that the Justice Department took 2.5 years to indict him, Trump now demands 2.5 more years to prove his innocence.
There are many reasons why legal experts believe that Judge Tanya Chutkan won’t consider anything of the sort. I mean, really? They want this woman, who among all the federal judges in the D.C. district has come down hardest upon the January 6 defendants in order to send a strong message of deterrence, to wait 2.5 more years while Trump continues to threaten the whole judicial process?
That’s a hard nope.
Upon hearing the proposed trial date, I had basically the same reaction that Chris Hayes of MSNBC did. Hayes couldn’t even finish reading the news about the trial date request off the teleprompter because he was laughing too hard. Click here or on the image to watch.
Still, I had enough friends send me the New York Times story about the proposed trial date, wondering if Trump’s lawyers had actually made good points, that I feel the need today to break down the arguments. (By the way, the Times piece is supremely disappointing in my view, because it presented Trump’s arguments without any discussion of why they are not only bogus, but are contemptuously gaslighting the whole country.)
So today, let’s examine why the filing is really a steaming manure pile. If Judge Chutkan does the reasonable, normal thing, she will set a trial date around one year out from the date of indictment, perhaps earlier to allow for some slippage as issues bounce up and down on appeal. She will hold over Trump the possibility of moving the trial date sooner if he continues to harass and threaten people online. And she will almost certainly see through what Trump’s lawyers have argued here.
Their opening statement is something else
Before I get into the “merits” of his lawyers’ arguments for why the trial should be put off for more than two and a half years, I need to address their very first citation. They write,
“The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice but to go forward with the haste of the mob.” Powell v. State of Ala., 287 U.S. 45, 59 (1932).
If you’ve heard about the Scottsboro Boys, then you also know generally about the Powell opinion. That landmark case ultimately reversed the convictions of nine Black men for allegedly raping two white women on a freight train near Scottsboro, Alabama, one of whom recanted her claim. The whole case was a sham and a symbol of racial injustice. Despite any physical evidence, and except for one 13-year old boy defendant, the defendants were sentenced to death in three single-day trials—after they were told they could contact no one, not even their lawyers or families. The trials were rushed—just a matter of weeks—and there were disruptive mobs around the courthouse. The Alabama Supreme Court, to no one’s surprise, had upheld the convictions and sentences.
That Donald Trump, who has raised hundreds of millions of dollars for his legal defense, enjoys a whole party apparatus behind him, pays armies of lawyers to defend him, and committed crimes in real time for all the country to see, should compare himself or his case to the Scottsboro Boys is ludicrous and offensive. And I doubt that the reference will be missed by Judge Chutkan.
Like reading War and Peace 78 times a day!
The defense complains that there are more than 11.5 million pages of discovery turned over by the government, and that to review this much material would be like reading Tolstoy’s novel 78 times each day until the proposed January 2, 2024 trial date. Sounds impossible, right?
To drive their point further home, they have a graphic! Look how tall 11.5 million pages is! It’s so much taller than the Statue of Liberty and the Washington Monument. (By the way, this is the point in the brief when you realize they are clearly writing for an audience other than Judge Chutkan, who is well versed in discovery and the volume of documents in complex trials.)
This mountain of paper is why, his lawyers say, they need not one year, but two whole years where the only thing that will happen is discovery and motions practice.
I was an IP litigator at a boutique law firm in San Francisco for many years. Our firm defended part of the Enron case (thankfully, I was not on it, but my friends were). My colleagues would handle discovery that, if printed out and stacked up as paper, would dwarf the tallest of buildings downtown. But here’s the thing: No one would ever do that.
Discovery is produced digitally precisely so that you can perform search queries on it. No one could possibly read it all. If you want to know what communications there are from or to John Eastman, for example, you can run a search for it. If you want to pull a transcript from a witness interview, same deal. There are now sophisticated software applications that allow lawyers to deal efficiently with huge amounts of data.
As Andrew Weissman, who coincidentally prosecuted the Enron case, said last night to MSNBC’s Lawrence O’Donnell, if the amount of discovery were the rule for setting trial dates, there would still be no trial date for Enron.
And frankly, most of the millions of pages produced in discovery are duplicates, email threads upon threads, and material already known to the defense. A huge part of the discovery in this case, for example, is the Trump Campaign’s own incriminating material.
Add to that the fact that Trump’s lawyers have had access to the publicly available January 6 evidence for over half a year, and Trump’s arguments that he would be unfairly prejudiced by a trial date in 2024 starts to sound like so much whining.
The need for a speedy trial
A defendant’s due process right to have time to adequately prepare for trial must be balanced with the public interest in not having justice delayed, and through that delay, denied.
There was a fascinating weigh-in on this question by a group of very conservative legal scholars, which included the co-founder of the Federalist Society, Steven Calabresi; former Republican Attorney General under George W. Bush, Alberto Gonzalez; and Judge J. Michael Luttig of the Fourth Circuit. In an amicus brief filed in favor of the government’s proposed January 2, 2024 date, these conservative heavyweights cited the Speedy Trial Act, arguing that Jack Smith’s proposed date is “reasonable” and accounted for “the American public’s interest in a prompt resolution of this profoundly important case.” They warned,
There is no more important issue facing America and the American people—and to the very functioning of democracy—than whether the former president is guilty of criminally undermining America’s elections and American democracy in order to remain in power notwithstanding that the American people had voted to confer their power upon the former president’s successor, President Joseph Biden.
And as I wrote about in our sister publication, The Big Picture (where I write half of our regular articles, you can subscribe and support us here!) Judge Chutkan has flipped the script on Trump and his public attacks upon the system and intimidation of witnesses via social media. At a hearing last Friday, she warned that continued public harassment and threats would lend urgency to holding the trial sooner to limit the impact of his statements upon witnesses and the jury pool.
The real audience for the filing
Trump needs to raise a great deal of money in order to fund his legal defense in the multiple cases now stacked against him. The best way he can do that is to continue the drumbeat that the system is persecuting him unfairly, and that his followers need to donate more to have his back. That’s what this is really about.
When Judge Chutkan ultimately sets the trial start date, for a day likely well before the 2024 election, Trump will again cry “election interference!” He’ll complain that the trial date was set much closer to the one Jack Smith proposed than the date his own lawyers wanted. And he’ll point to the millions of pages of evidence that his lawyers will have to review so he can claim that it is impossible for him to get a fair trial—just like those Scottsboro boys, apparently.
We mustn’t cede this ground or the general narrative to him. A reasonable trial schedule lies at the discretion of the trial judge, and it weighs the defendant’s needs for due process with the need for a speedy trial and for justice that is not too long delayed. Trump will have, and already has had, plenty of time to prepare.
We’ll know the judge’s decision on the trial date at the upcoming hearing on August 28. Until then, keep in mind that the reporting on the proposed trial date is often woefully biased in Trump’s favor, and that experienced lawyers and judges understand what’s really going on.