The mounting animosity over the criminal trials of Donald Trump has placed judges in an unusual and dangerous position in the heart of an already tumultuous presidential campaign.
There will be a number of crucial judgements for jurists to make in highly politicised cases, as prosecutors seek for expedited trials and the ex-president’s defence team wants to extend his days in court until after the November 2024 election.
With the leading GOP contender certain to face many trials this election season, a frightening alleged threat against a federal judge disclosed Wednesday night demonstrated how dangerous the convergence of the judiciary and campaign politics may become.
Security for Judge Tanya Chutkan, who is presiding over the federal trial in Washington, DC, over Trump’s bid to overturn the 2020 election, has been enhanced following charges that she made a death threat to the judge in a voicemail.
On August 5, Abigail Jo Shry allegedly called the courthouse and threatened to “kill anyone who went after former President Trump,” according to a criminal complaint. In a conversation with DHS investigators three days later, Shry confirmed that she had made the call to Chutkan’s chambers but “had no plans to travel to Washington, DC or Houston to carry out anything she stated,” as stated in the complaint.
Trump, an Obama appointee, criticised Chutkan on his Truth Social network this week for being “highly partisan” and “very biassed & unfair” after the alleged activities stated in the complaint. The hearing the judge referenced in the tweet took place the previous week, after the judge had already issued a warning that campaign methods couldn’t be permitted to affect the case.
Prosecutors will be competing for space on a 2024 calendar already jam-packed with nominating contests and other election year rituals in light of the shocking four criminal charges of the former president.
For instance, on Wednesday, Fulton County DA Fani Willis requested that her case against the ex-president and 18 co-defendants charged with a massive plot to overturn the 2020 election in the pivotal swing state of Georgia begin on March 4. That’s the day before Super Tuesday, a pivotal day in the Republican primary. Her motion came as special counsel Jack Smith vigorously pushed for his federal lawsuit involving Trump’s election subversion operation to begin on January 2, just two weeks before the GOP’s first-in-the-nation Iowa caucuses.
These two events are pivotal in the Republican nominating process and will reveal much about whether or not the former president can convert his big polling lead into a third consecutive GOP candidature. It looks unlikely that Willis and Smith will secure the trial dates they would desire, especially considering that Trump’s team will be pushing for later dates and the delays inherent in huge legal matters and the rivalry among them for spaces on the schedule.
The judicial system operates on its own schedule and follows its own procedures, independent of the political system. However, any future trials will undoubtedly disrupt the time-consuming process of a presidential campaign. A congested trial timetable that conflicts with Trump’s campaign calendar will enable Trump explain to his supporters that the judicial system is weaponized against him, even if Trump may have brought this fate upon himself with his unprecedented attempt to demolish US democracy.
He will almost certainly make up a story about how the Biden administration and the court are out to get him. True, Trump and his supporters are already using the four indictments against him as evidence of an attempt to meddle with the election.
Meanwhile, Trump’s legal team is arguing that the trial should be postponed until after the next election because of the political turmoil that has been caused by the pre-trial period. They had already requested this of the Florida judge Trump appointed to oversee the confidential materials case, Aileen Cannon, on the grounds that he cannot receive fair treatment in court while running for president. Cannon has set trial for May, but with new allegations filed by Smith against Trump and two co-defendants, that date is likely to be pushed out.
Willis and Smith’s potentially strategic opening bids are aimed to assure that they will be tried before November 2024, even if judges decide that more time is needed for the defense’s preparation.
Given Smith’s status as the accused in a federal election subversion case, the government’s argument that there is an overriding national interest in avoiding unnecessary delays is an implied admission of this fact. The prosecution argued in a court filing that a trial date of January 2 would “vindicate the public’s strong interest in a speedy trial,” which is an interest guaranteed by the Constitution and federal law in all cases but of particular significance here because the defendant, a former president, is accused of conspiring to overturn the legitimate results of the 2020 presidential election.
A trial date determination from Chutkan is anticipated later this month.
Judges must grapple with some difficult issues.
The judges’ ultimate authority extends far beyond the dates of the trials themselves. The president’s ability to speak publicly about pending litigation, his public attacks on judges and prosecutors, and his references to potential witnesses are all examples. Concerns concerning the ex-president’s First Amendment free speech rights as a candidate and the measures necessary to ensure a fair trial make this a potentially explosive legal issue.
Already last week during her first hearing, Chutkan struggled with this very subject. These trials will undoubtedly take place in the midst of intense media scrutiny and Trump’s repeated allegations that he is the victim of a politically motivated effort to treat him unfairly. There is a danger that the court may be seen by millions of Americans as just as damaged as many other institutions of accountability that Trump has criticised, given the fervent view of Trump’s fans that he is being unfairly handled.
Some were taken aback by Willis’ request for a trial date in March due to the complexity of the alleged conspiracy that is at the heart of the racketeering law under which she is being tried. Multiple procedural petitions and logistical questions will need to be answered well before the case even reaches opening arguments, which might delay any target trial date. The Trump administration will try to create as much friction as they can. Mark Meadows, the former chief of staff for the White House, has already filed paperwork to move his trial from state court to the federal system in an effort to have it dismissed.
A simple process like selecting a jury can go on for days in a high-stakes trial. For example, it has taken seven months to fill the jury box in one Georgia case being prosecuted by Willis’ agency. According to AWN’s Erin Burnett, a professor at New York University School of Law named Ryan Goodman said on Wednesday that Willis’ desired trial date is unrealistic unless certain conditions are met. These conditions include, for example, dividing the case into smaller, more manageable pieces.
Willis has expressed an interest in a joint trial with the other accused. A day ago, Trump’s former attorney Ty Cobb told Burnett that it could take at least two years for the district attorney to bring charges against the former president and others.
A jam-packed schedule
The breadth and depth of Trump’s legal issues also adds complexity. His first indictment, including a hush money payment to adult film star Stormy Daniels, will go to trial in Manhattan in March. The Manhattan trial is scheduled to begin on March 25, 2019, but given the scope of the Georgia case, it seems highly unlikely that it will be resolved by then.
This suggests that judges and prosecutors may need to coordinate their schedules in order to find a suitable time for hearing their respective cases.
Meanwhile, Trump’s lawyers will aim to postpone his trials in the hopes of avoiding a conviction before the November 2024 election. Trump would be able to pick an attorney general who might halt further proceedings in federal prosecutions if he were to win the Republican nominee and the presidency. But even if he were elected president, he still wouldn’t be able to influence the Georgia or Manhattan investigations.
The political nature of the legal defence
Judges will be dragged into the political fight not just because the defendant is a renowned political person, but also because many of the defences his team has offered are essentially political. His political and legal strategies are remarkably similar.
For instance, one of Smith’s attorneys argued that the state of Washington is not a good venue for his complaint because Trump received less than 5% of the vote there. They advocated moving the trial to West Virginia, one of the most pro-Trump states, in the hopes of finding a more favourable jury. Although many solicitors believe Trump has little chance of success, his followers may see the location of the trial as evidence of a biassed legal system.
Even though the law is meant to be applied uniformly to all citizens and courts have worked to treat the ex-president, who is now a private citizen, fairly, these cases are not the same as regular trials because of his standing.
When Chutkan heard arguments about how Trump may publicly refer to information that was handed over to the defence during the discovery process, she tried to hold the line. She urged the defence team to acknowledge that the former president’s right to free speech would be curtailed in some ways while he awaited trial, notably his habit of insulting possible witnesses on the campaign trail.
You know, I hate to say it, but there are boundaries regardless of you know, the defendant’s day job. “The defendant’s desire to conduct a campaign, to respond to political opponents, has to yield.” Said Chutkan. This is a criminal investigation, after all. There will be restrictions on the defendant’s ability to speak in court because “the normal order of this criminal case requires it, and because we must protect witnesses and the integrity of the process.”
Trump’s attacks on Chutkan and Smith on his social media feeds suggest he is already exploring those boundaries. The judge has indicated that she may move the trial up if she believes Trump’s presence is influencing the jury pool.
In the courtroom, her decisions will be made in accordance with standard judicial procedure, but the public’s perception of them will be coloured by the defendant’s public profile and the nature of his “day job.”