Judges are being forced into an unprecedented and perilous spot in the middle of an already tempestuous presidential campaign because of rising acrimony over the criminal trials of Donald Trump.
Prosecutors pushing for speedy trials and the ex-president’s defense team’s attempts to delay his days in court until after the November 2024 election are setting up a series of critical decisions for jurists in highly politicized cases.
And an ominous alleged threat to a federal judge revealed Wednesday night showed how hazardous the collision of the judiciary and campaign politics could become in a unique election season likely to feature multiple trials of the front-running GOP candidate.
A woman from Texas has been charged with threatening in a voicemail to kill Judge Tanya Chutkan, who is overseeing the federal trial in Washington, DC, over Trump’s attempt to overturn the 2020 election and has already had her security increased in the courthouse.
Abigail Jo Shry called the judge’s chambers on August 5 and left a message threatening to “kill anyone who went after former President Trump,” according to a criminal complaint. Three days later, Shry admitted to Department of Homeland Security special agents that she made the call to Chutkan’s chambers but that she “had no plans to travel to Washington, DC or Houston to carry out anything she stated,” the complaint said.
Earlier this week, after the alleged actions detailed in the complaint, Trump criticized Chutkan, an Obama appointee, as “highly partisan” and “very biased & unfair” on his Truth Social network. The post followed a hearing last week in which the judge warned that the tactics used in campaigns could not be allowed to influence the case.
The stunning four criminal indictments of the former president are setting the stage for a campaign like no other as prosecutors vie to get their trials on a 2024 calendar filled with nominating contests and other rituals of an election year.
Fulton County District Attorney Fani Willis, for example, on Wednesday asked for a trial to begin in Georgia on March 4 for her case against the ex-president and 18 co-defendants charged with a vast conspiracy to overturn the 2020 election in the critical swing state. That date falls just a day before Super Tuesday – one of the most critical moments of the Republican primary. Her request followed special counsel Jack Smith’s aggressive push for a trial to start on January 2 in his federal case regarding Trump’s election subversion effort – which would be just two weeks before the GOP’s first-in-the-nation Iowa caucuses.
Both these dates are among the most crucial in the Republican nominating calendar and will go a long way to showing whether the ex-president can turn his strong polling lead into his third straight GOP nomination. Given the delays inherent in big legal cases and the competition among them for spots on the calendar, it appears unlikely that Willis and Smith will get the trial dates they would prefer, especially when Trump’s team will be pushing for later dates.
The legal system works according to its own timetable and procedures – not a political one. But any trials that are eventually held will unquestionably interfere with the time-consuming business of running for president. And while Trump could be said to have brought his fate upon himself with his never-before-seen attempt to dismantle US democracy, a crowded trial schedule that collides with his campaign calendar will help Trump argue to his supporters that the justice system is weaponized against him.
He’s almost certain to falsely claim that the Biden administration and the judiciary are conspiring to hurt his campaign. Indeed, Trump and his allies are already framing the four indictments against him as an example of election interference.
Trump’s legal team, meanwhile, is using the political tumult stirred by the pre-trial period to argue that proceedings must be delayed until after the next election. They previously petitioned Judge Aileen Cannon, the Trump appointee presiding over the classified documents case in Florida, to do just that, arguing that he cannot get fair treatment during a political campaign and effectively is too busy to both attend court and run for president. Cannon, however, has set May for the trial, although that seems likely to slip after Smith filed additional charges in the case against Trump and two co-defendants.
The aggressive opening gambits by Willis and Smith may be early bids designed to ensure that if they don’t get their first choice of dates, they may at least still get trials sooner than November 2024, even if judges believe more time is needed for the defense to prepare.
Smith’s prosecutors implicitly admitted this in arguing in the federal election subversion case that there was an overriding national interest in avoiding unnecessary delays – given the identity of the accused. “A January 2 trial date would vindicate the public’s strong interest in a speedy trial – an interest guaranteed by the Constitution and federal law in all cases, but of particular significance here, where the defendant, a former president, is charged with conspiring to overturn the legitimate results of the 2020 presidential election,” the prosecution said in a filing to the court.
Chutkan is expected to announce a decision on a trial date later this month.
The fateful decisions that judges will be called on to make go far beyond when the trials take place. They include the extent to which Trump can make comments on the cases in which he is involved, how long he will be allowed to verbally attack judges and prosecutors on social media and in rallies, and how he can refer to possible witnesses. This is a potential legal minefield because it gets into questions about the ex-president’s First Amendment free speech rights as a candidate and steps needed to protect a fair trial.
This is already a question that Chutkan wrestled with in her first hearing last week. These are trials that are certain to take place amid massive media attention and incessant claims by Trump that he is being treated unfairly as part of a political witch hunt, so every step that every judge takes will be closely watched. Given Trump supporters’ vehement belief that he is being unfairly treated, the risk is that the judiciary will emerge, in the eyes of millions of Americans, just as dinged up as many other institutions of accountability that Trump has maligned.
Willis’ request for a March trial date surprised some observers, simply because of the number of co-defendants in her case, which is being prosecuted under a racketeering law that allows for a narrative of a sophisticated alleged conspiracy. Well before the case gets anywhere near opening arguments, there will be multiple procedural motions and logistical questions to answer that could push back any desired trial date. Trump’s team is sure to seek to introduce as much delay as possible. In one early sign of the litigation to come, former White House chief of staff Mark Meadows has already filed to shift his trial from state court to the federal system so that he can try to get it dismissed.
Even a procedure like jury selection can take a long time in a complex case. In one case being prosecuted by Willis’ office in Georgia, filling the jury box has already dragged on for seven months, for instance. Ryan Goodman, a professor at New York University Law School, told CNN’s Erin Burnett on Wednesday that the date Willis wants would only be feasible under certain circumstances – for example, if the size of the case were pared down into separate proceedings that could allow some defendants to move to trial more quickly.
Willis has said she wants to try all the defendants together. Ty Cobb, a former lawyer for Trump, told Burnett a day earlier that it could be at least two years until the district attorney is able to put the ex-president and others on trial.
Another complication is the sheer depth of Trump’s legal problems. He is already due to go on trial in March in Manhattan over his first indictment – related to a hush money payment to adult film star Stormy Daniels. Given the scale of the Georgia case, it’s almost impossible to believe that it could be wrapped up by the time the Manhattan trial is due to begin on March 25 next year.
This points to the possibility that judges and prosecutors might have to coordinate their timetables as they seek to find a window for their assigned cases.
All the while, Trump’s legal teams will be seeking to delay trials in order to try to spare the ex-president the possibility of conviction before voters go to the polls in November 2024. If Trump wins the GOP nomination and the presidency, he would reacquire the executive powers that would allow him to appoint an attorney general who would be able to block further action at least on federal cases. But even if he won the White House, he wouldn’t have the same ability to meddle in the Georgia or Manhattan cases.
Besides the fact that the defendant is such a prominent political figure, judges will be dragged into the political fray because so many of the defenses his team has so advanced are so inherently political. There is not much difference between his legal strategy and his political one.
For instance, one of his lawyers argued that Smith’s election subversion case cannot be fairly tried in Washington, where Trump won only 5% of the vote. They suggested instead that the case be moved to West Virginia, one of the most pro-Trump states in the nation, where a jury might be more sympathetic towards him. Many legal experts think Trump has little chance of getting what he wants, but a decision on where the trial is held may be seen by his supporters as proof that the legal system is biased against him.
While every citizen is supposed to be equal before the law, and judges have tried so far to treat the ex-president – who is now a private citizen – without favor or prejudice, his status means these cases are really not like regular trials.
Chutkan tried to hold the line on this issue when she heard arguments on how Trump could refer in public to evidence that was handed over to the defense during the discovery process. She asked the defense to accept that some of the former president’s expectations of free speech, including the practice of attacking potential witnesses on the campaign trail, would be limited by the fact that he was awaiting trial.
“The defendant’s desire to conduct a campaign, to respond to political opponents, has to yield … there are limits regardless of you know, I hate to say – his day job?” Chutkan said. “I mean, this is a criminal case. The need for this criminal case to proceed in the normal order and protect witnesses and the integrity of the process means that there are going to be limits on the defendant’s speech.”
Trump has already appeared to test where those limits lay by attacking Chutkan and Smith on his social media feeds. It will be up to the judge – who has warned she could speed up the trial if she feels Trump is tainting the jury pool – to decide on exactly where that line is.
And while her decisions, like those of other judges, will unfold according to judicial procedure in the bubble of a court room, they will be viewed through a political lens nonetheless because of the identity of the defendant and the nature of his “day job.”