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Starting in July, Judge Tanya Chutkan is going to have to make one of the most controversial decisions in the history of the United States judiciary. She didn't ask to be put on the spot, but there she is anyway. Almost every legal expert thinks that the Supreme Court will ultimately rule that, no, Donald Trump is not a king, and can stand trial now for crimes he committed while president. The ruling is expected in June.
Then what? Judge Tanya Chutkan has one tough call to make. She could schedule the trial for August. That would outrage Trump, who will ask for a trial next February. He will argue that a candidate should not be put on trial during a campaign. Special Counsel Jack Smith will argue that the voters are entitled to know if a candidate is a criminal before the election, not after it. No matter what she decides, she will get a lot of incoming flak. There is no way out for her.
Chutkan's decision will go to the heart of whether former presidents and current presidential candidates are above the law. DoJ policy is that a sitting president cannot be indicted, but Trump is not a sitting president. It is also DoJ policy to avoid making announcements that could affect an election within 60 days of the election. However, that policy went out the window when former FBI Director James Comey announced "More e-mails" 11 days before the 2016 election. That announcement possibly threw the election to Donald Trump. Chutkan could interpret Comey's announcement as the end of the "no announcement" policy.
On his boutique social media site, Trump recently wrote: "The Very Strict Rules and Regulations of the Department of Injustice STATE CLEARLY that you can't prosecute a Political Opponent, or anyone, RIGHT IN THE MIDDLE OF HIS/HER CAMPAIGN." That's completely false. He made that up out of thin air. There is no DoJ policy that says candidates can't be put on trial during a campaign. If anything, DoJ policy is that candidates are treated the same as everyone else. If standard procedures and timing would cause a trial to be in the middle of a campaign, so be it. There is no Get-Out-of-Trial card a candidate can play.
Chutkan has already stated that Trump's political schedule will not affect her decisions. She will be guided only by the law. If she starts the trial in August, Trump's lawyers will undoubtedly appeal her decision. They will think of something, like people over 6 foot tall can only be tried in a month with an "R" in the name. It doesn't matter how nonsensical it is as Trump doesn't want to win the appeal, only to stall. What will happen in that case? We don't know. Chutkan might claim that the appeal has to wait until after there is a decision and start the trial anyway.
If that doesn't work, Trump may claim he needs 4 months to prepare his trial. Chutkan can parry that by saying that he was indicted on Aug. 1, 2023, so he has had a year to prepare. If his lawyers failed to prepare because they were expecting to win the immunity case, she can say they were foolish and continue with the trial anyway.
If she starts the trial in August, it will probably run about 2 months. This will be extremely bad for Trump in two ways. First, normally, the defendant is expected to be in the courtroom the whole time. Every day Trump is sitting in a D.C. courtroom is a day he is not out holding rallies in Michigan or Wisconsin (we assume he wouldn't want to campaign in Arizona in August anyway).
Second, the optics of him being on trial and evidence being presented daily will remind the voters that he is a criminal. His base won't care, but those Republicans who voted for him because they don't like the Democrats may decide enough is enough and grudgingly vote for Biden.
Could the trial be ongoing on Election Day? It is possible, but Smith might be willing to reduce the amount of evidence he wants to present to speed up the trial. Trump might also want to get it over so he can go campaign. Even if the verdict is "guilty," the appeals will take months. If Trump wins the election and the Supreme Court gets the case after he is inaugurated, we'd certainly be in uncharted territory. Can the DoJ drop a case after there has been a trial and a verdict? Trump might try. Boy is Chutkan going to earn her 15 minutes of fame, and then some. (V)