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Rebecca Blackwell

While <a href="https://www.washingtonpost.com/politics/2024/03/04/supreme-court-trump-ballot-decision/" target=_blank>leaving him on the ballot in the 14th Amendment case</a> (but refusing to rule out that <a href="https://www.washingtonpost.com/january-6-capitol-riot/" target="_blank" class="contextual_link">Jan. 6</a>, 2021, was an “insurrection”), the Supreme Court has taken every opportunity to delay four-times-indicted former president Donald Trump’s Jan. 6 trial.

In late December, the court <a href="https://www.cnn.com/2023/12/22/politics/supreme-court-trump-immunity-jack-smith/index.html" target=_blank>declined to consider</a> the absolute immunity claim, preferring to wait for the ruling from the U.S. Court of Appeals for the D.C. Circuit. After the appellate decision, the high court was not obliged to take the case. It could have affirmed summarily. Nevertheless, after nearly two weeks, the court decided it did need to take the case. Then it set the hearing for April 22. Trump’s team undoubtedly celebrated the latest delay. But should it?

As a preliminary matter, the Justice Department has clarified that its guideline to refrain from initiating indictments or investigations about 60 days before an election is <a href="https://www.cnn.com/2024/02/28/politics/fact-check-trump-justice-department-rules-prosecution-during-campaign/index.html" target="_blank">inapplicable to pending cases</a> that a court schedules during that time frame. Cases that are ready to go can start regardless of the campaign calendar.

The Jan. 6 case likely will start before the election.

The Supreme Court could — <a href="https://www.cnn.com/2024/02/29/opinions/supreme-court-trump-january-6-lithwick-vladeck/index.html" target="_blank">as it did</a> in Watergate, emergency cases involving the <a href="https://www.washingtonpost.com/coronavirus/" target="_blank" class="contextual_link">coronavirus</a> or <a href="https://www.washingtonpost.com/archive/opinions/2000/12/12/bush-v-gore/3af4c604-6456-4960-bd98-7e046943a784/" target="_blank">Bush v. Gore</a> — move promptly and decide the immunity case within a few weeks of the hearing. Norman L. Eisen, Matthew A. Seligman and Joshua Kolb at<a href="https://www.justsecurity.org/92965/when-special-counsel-smiths-january-6th-trial-will-reach-a-verdict-analyzing-the-alternative-timelines/" target="_blank"> Just Security </a>explained: “For example, in U.S. v. Nixon, the Court held oral argument on July 8, 1974 and issued its decision on July 24, 1974 — an interval of three weeks. If the Court were to follow that example here, we would receive a decision around Tuesday, May 13.” (In the 14th Amendment case, the opinion came in slightly less than a month after oral arguments.) Arguably, any further delay would look hyperpartisan even for this court.

With a May ruling, Judge Tanya S. Chutkan could stick to her schedule (i.e., each day lost since the December stay gets added back to the schedule, and the trial could start on Aug. 2. The trial would run through the campaign’s final months. Trump, rather than campaigning in the last months of the campaign, would be sitting (pouting, if his previous courtroom demeanor is predictive) in court. During the fall, daily testimony concerning his 2020-2021 coup attempt would be front and center. As Eisen, Seligman and Kolb calculated, “If the trial starts on Aug. 2 and lasts eight weeks it will be submitted to the jury on Sept. 27; and if the trial lasts 12 weeks, it will be submitted to the jury on Oct. 25.”

That schedule is Trump’s worst nightmare. Then-FBI Director James B. Comey claimed 11 days before the 2016 election that “new” documents had turned up concerning former secretary of state and 2016 Democratic presidential nominee Hillary Clinton’s emails. That threw a monkey wrench into the campaign, <a href="https://fivethirtyeight.com/features/the-comey-letter-probably-cost-clinton-the-election/" target=_blank>arguably costing her the election</a>. Here, an October guilty verdict — even if appealed — would be curtains for the MAGA crowd.

What if the court’s decision requires further fact-finding to apply its holding (e.g., “Does the indictment involve official acts?”)? If Chutkan needs to hear evidence outlining his complicity in the coup, voters would still get an earful about Trump’s betrayal of the Constitution. If Chutkan instead could rule on the indictment’s allegation, not much time would be lost.

Alternatively, Just Security’s authors calculated a trial start date around Sept. 20 if the Supreme Court slow-walks a ruling on the immunity claim until the end of June, the session’s traditional endpoint. A verdict would be nearly impossible before the election, but the campaign’s close would be consumed with testimony about Trump’s alleged involvement in the coup. That would be nearly as devastating as a verdict.

First, any prospect of starting the Jan. 6 trial before the election evaporates if the Supreme Court’s ruling leaves application of immunity to this case less than airtight. After Chutkan rules, Trump then might take another interlocutory appeal, effectively foreclosing any pre-election trial.

Second, however, no serious lawyer thinks the court would agree that Trump enjoys absolute immunity for alleged crimes in office. Even a court this partisan would not countenance immunity for assassinating political enemies, as the D.C. Circuit postulated. Whatever the timing, therefore, the court almost certainly would issue a stark rebuke to Trump’s fantasy of absolute immunity. Voters would still have the benefit of the court’s rejection of his view of the presidency as dangerous and unconstitutional, infuriating Trump and giving <a href="https://www.washingtonpost.com/elections/candidates/joe-biden-2024/" target="_blank" class="contextual_link">President Biden</a> a powerful closing message.

Third, the Jan. 6 trial delays have opened up the calendar. New York’s hush-money trial is scheduled to get <a href="https://www.washingtonpost.com/politics/2024/02/15/trump-new-york-hush-money-trial-schedule/" target=_blank>underway March 25</a>, with a likely May verdict. Disregard <a href="https://www.washingtonpost.com/opinions/2024/02/18/bragg-trial-critics/" target=_blank>pundits’ sneering</a>: The facts and the law strongly favor prosecutors. A conviction (maybe with an embarrassing cross-examination if Trump insists on testifying) surely would be a blow to Trump. “The first former president convicted of a felony!” would dominate the news, as would discussion about whether to incarcerate him.

It is also possible, although unlikely, given Judge Aileen M. Cannon’s slow-walking, that the Jan. 6 delays would allow the trial for <a href="https://www.washingtonpost.com/national-security/2024/02/28/trump-cannon-classified-documents-ruling/" target=_blank>Trump’s alleged mishandling of classified documents</a> to begin, if not finish, before the election. (Special counsel Jack Smith wants to start the case in July; Trump’s lawyers counteroffered August.) A trial highlighting Trump’s disdain for national security and alleged obstruction of justice would easily monopolize fall campaign coverage.

Fourth, beginning but not completing the Jan. 6 and/or classified documents trials before the election would have a silver lining: The prosecution could present devastating evidence without the risk of losing before voters cast ballots.

Any not-guilty verdict would give Trump an enormous boost, vindicating his persecution claim. But despite the slothlike pace of the Supreme Court, through much of the fall, Trump likely will be off the trail and on trial — as voters get nonstop reminders about his contempt for the law.

University of California at Berkeley, BA in history

University of California at Berkeley, JD

Jennifer Rubin writes reported opinion for The Washington Post. She is the author of “Resistance: How Women Saved Democracy from Donald Trump” and is host of the podcast Jen Rubin's "Green Room."

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