Former President Donald Trump is unlikely to stand trial as scheduled in the District of Columbia, where he’s accused of conspiring against and obstructing the federal government through his efforts to challenge the results of the 2020 election, according to several lawyers and legal experts.
The trial has been set for March 4, a politically significant date since it falls just one day before Super Tuesday, when the greatest number of U.S. states will hold primary elections. However, the pretrial proceedings have grown increasingly complex, with several pending motions and appeals, as well as a case before the Supreme Court that could collapse half the charges.
It would be in President Trump’s interest to have the trial delayed until after the election as he vies for the Republican nomination, while his opponents would like to see a conviction as soon as possible.
Immunity
All the efforts to stick to this tight schedule, which President Trump’s lawyers have repeatedly objected to, were thrown up in the air on Dec. 13 when the federal judge presiding over the case, District Judge Tanya Chutkan, put the case on hold.
Judge Chutkan did so after the U.S. Court of Appeals for the District of Columbia Circuit decided to hear President Trump’s appeal on the issue of presidential immunity.
Lawyers for the former president have argued that his actions to challenge the 2020 election were within the bounds of his presidential duties and are thus covered by presidential privilege. They also asserted that because President Trump was impeached by the House of Representatives for his election challenge and then acquitted by the Senate, he shouldn’t be charged criminally for the same actions.
A three-judge panel on the D.C. Circuit asked the parties to brief it on the issue by Jan. 2, 2024, giving them less than three weeks with the holidays in between.
Ms. McAdoo-Gordon questions whether the fast schedule was because of Mr. Smith’s request to the Supreme Court to rule the presidential immunity issue on an expedited basis. If the Supreme Court accepts the case, it would effectively “jump” the D.C. Circuit, rendering the lower-court decision superfluous.
“It’s too important a case for the country & constitutional analysis & interpretation for them not to. So, what these three [D.C.] judges think ultimately just does not matter.”
If the Supreme Court accepts the case on an expedited basis, it may allow Mr. Smith to meet his trial date, says Jonathan Turley, a professor at George Washington University Law School and an expert on constitutional issues.
Yet it’s more likely the trial date will be postponed, Horace Cooper, a senior fellow with the National Center for Public Policy Research who formerly taught constitutional law at George Mason University, suggests.
While the D.C. Circuit schedule doesn’t list a date for a hearing, Mr. Cooper is confident it will be scheduled, since the judges wouldn’t want to decide the issue based on written briefs alone.
Former President Donald Trump sits at the defense table with his attorneys Christopher Kise (L) and Alina Habba (2nd-R) in the New York State Supreme Court in New York City on Dec. 7, 2023. (Eduardo Munoz Alvarez-Pool/Getty Images)
“They’re going to ask for that,” he told The Epoch Times.
Even if the hearing takes place in short order, there’s no telling how long the judges will take to issue an opinion. Still, the judges may be prodded to hasten a ruling “because the prosecution is pressing on how significant this is,” he said.
“They also know that if they take their time, the Supreme Court is most likely going to say, ‘Well, let’s wait until they get it,’” he said.
Lawyers for President Trump would be well-advised to modify their immunity argument to make it more appealing to the Supreme Court, Mr. Cooper said.
“If the Trump team continues with this specific argument that merely being president alone immunizes him from this criminal charge ... it’s not nearly as interesting,” he said.
Obstruction
Regardless of how the immunity issue shakes out, the Supreme Court recently threw a hefty wrench into Mr. Smith’s scheduling plans.On Dec. 13, the court accepted the petition of Joseph Fischer, who was charged with “obstruction of an official proceeding” for his participation in the protest and riot at the U.S. Capitol on Jan. 6, 2021.
The charge, which the Department of Justice (DOJ) has brought against more than 300 people who were at the Capitol on Jan. 6, carries penalties of up to 20 years in prison. Mr. Smith also used this charge against President Trump—and it makes up at least half of his case.
The charges stem from a novel interpretation of Section 1512 of the federal criminal code that prohibits “tampering with a witness, victim, or an informant.”
In 2002, Congress amended the law by adding another subsection that applied to whomever “corruptly ... alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or ... otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”
The DOJ and Mr. Smith have taken the last part of the subsection and charged that Jan. 6 rioters corruptly obstructed Congress from certifying the election that day.
D.C. federal judges have mostly agreed with that interpretation, except for Judge Carl Nichols, who threw out that charge against Mr. Fischer and two other defendants.
Judge Nichols opined that the law “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”
The 2002 amendment was added to close “a very specific loophole” that allowed people to destroy evidence of their wrongdoing, he said.
“Nothing in the legislative history suggests a broader purpose than that,” he said.
The same issue was explained in detail in 2018 by attorney William Barr in a letter to the DOJ when then-special counsel Robert Mueller was reportedly considering using that same statute against President Trump. Mr. Barr, who said such an interpretation of the law was unwarranted, was later appointed attorney general by President Trump.
In July 2002, then-Sen. Trent Lott (R-Miss.) said he introduced the Section 1512 amendment to “enact stronger laws against document shredding ... so we don’t have a repeat of what we saw with the Enron matter earlier this year.”
Despite that, Judge Nichols’s decision to throw out the charge was overturned by the D.C. Circuit.
Defense attorney William Shipley, who has represented a number of Jan. 6 defendants, predicted that the Supreme Court picked up the Fisher case in order to bar the DOJ’s interpretation of Section 1512.
“The last 3 times SCOTUS has taken up cases involving ‘expansive’ DOJ definitions of terms in an obstruction statute, the Court reversed the conviction in all 3 cases.”
Mr. Shipley pointed out that this outcome was predicted in March by Harvard law professor Jack Goldsmith, who, while a conservative, is no ally of President Trump.
“The interpretation of a criminal statute used to convict hundreds of J6 rioters, 18 U.S.C. 1512(c)(2), won’t survive appellate review,” Mr. Goldsmith said in an X post.
The Supreme Court “interprets statutes like this narrowly” and will eventually do so again in this case, he wrote.
Mr. Cooper was more cautious in interpreting the court’s intentions.
The fact that the case was accepted merely means that “there are at least four justices that think that this case presents a novel issue that would be helped by the guidance of the entire court.”
(L–R) Supreme Court Justices John Roberts, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh attend the State of the Union address at the U.S. Capitol in Washington on Feb. 5, 2019. (Doug Mills-Pool/Getty Images)
While it’s true that the court generally doesn’t accept cases “to just ratify earlier rulings,” political considerations also come into play, particularly for some of the justices, he said.
There are two or three progressive justices who “continue to use their perch as a way to try to affect society” and at least two of them may have voted to pick up the case in a bid to affirm the D.C. Circuit ruling, Mr. Cooper speculated.
In his view, Chief Justice John Roberts, who has, a number of times, voted with his left-leaning colleagues despite being a conservative, likely didn’t want to pick up the case and likely wouldn’t want to pick up the Trump immunity case either.
“I can tell you that Chief Justice Roberts doesn’t want to get caught in the middle of a political wildfire,” Mr. Cooper said.
Still, Chief Justice Roberts would likely consider the Jan. 6 case less “explosive” because it’s less likely to affect the election, he said.
“He might prefer it” but would still be aware that the “tangential effect of the J6 case” will affect the Trump prosecution.
The legal issue the court will be considering boils down to the “fair notice” argument based on the Constitution’s due process clause, Mr. Cooper said.
“Has the government stretched a statute that nobody would have assumed would have encompassed their actions?” he said.
In his view, the DOJ’s interpretation is indeed inappropriate and “quite a stretch” from what the law was intended to cover.
He suggested that if Congress wants to specifically make an intrusion into the Capitol building a felony, it should pass a law to that effect.
Even if the Supreme Court were to uphold the obstruction charges, it would still leave the question of how soon.
Mr. Shipley predicts that “the Trump D.C. case will not be going to trial”—and at the very least, isn’t on schedule.
Another lawyer who has gained popularity analyzing the Trump cases through his anonymous X account—“KingMakerFT”—agreed that a delay of the Trump case is nigh on inevitable.
“I can’t think of any scenario in which Smith keeps the March 4 trial date. Judge Chutkan hasn’t decided Trump’s motion to dismiss on statutory grounds, which includes argument on what Section 1512 means. SCOTUS now has that issue. June decision at the earliest,” he said.
“The most prudent thing” for Mr. Smith to do would have been to immediately drop the obstruction charges against Mr. Trump, Mr. Cooper said.
That would leave the prosecutors with two charges: conspiracy to defraud the government and conspiracy to violate the voting rights of Americans.
Now, however, Judge Chutkan has halted the proceedings, and Mr. Smith is stuck with the obstruction charges, he said.
KingMakerFT deemed it “highly, highly unlikely” that Mr. Smith will drop the charges.
“The remaining two charges are even more problematic,“ he told The Epoch Times via email. ”Apart from that Smith is already stepping over the line as far as the appearance of a political prosecution. Unilaterally dismissing half the charges just to keep an unreasonably brief trial schedule would be strong objective evidence that this is a political prosecution.”
