It’s Not Clear If Jack Smith’s Trump Case Will Go to Trial Before Election, Analysts Say

(Left) Special Counsel Jack Smith delivers remarks in Washington on Aug. 1, 2023. (Right) Former President Donald Trump attends his trial in New York State Supreme Court in New York City on Dec. 7, 2023. Drew Angerer, David Dee Delgado/Getty Images

Following the U.S. Supreme Court’s hearing Thursday on President Donald Trump’s presidential immunity case, some legal analysts said that special counsel Jack Smith’s election-related trial likely won’t be held before the November election.

It’s not clear when the Supreme Court will render its judgment in the case. The court is slated to issue all of its decisions by the end of June or early July.

“Even if the justices leave open the possibility that Trump can still face criminal charges in some form or another, the timing of the court’s ruling and whether its decision requires additional proceedings in the lower courts—for example, to determine which of the acts alleged in Smith’s complaint involve official or private conduct—could complicate Smith’s efforts to move the D.C. trial forward before the 2024 election,” wrote SCOTUSBlog’s Amy Howe on Thursday evening.

And she noted that based on the Supreme Court’s hearing Thursday, “the timing of the court’s eventual opinion and the resulting trial remains unclear, leaving open the possibility that the court’s decision could push Trump’s trial past the November election.”

In the Smith case, President Trump was indicted on four counts for allegedly trying to overturn the 2020 election before the Jan. 6, 2021, breach at the U.S. Capitol, one of four criminal cases that he faces while he campaigns as the 2024 presumptive Republican nominee. He has pleaded not guilty to the charges, saying that they are politicized and designed to wound his election chances.

President Trump is appealing the case on grounds that he should be declared immune from prosecution because his activity after the 2020 election was part of his presidential duties. Prosecutors say that it was not part of his official duties and he was acting in his personal capacity.

In the meantime, U.S. District Judge Tanya Chutkan put a pause on the Trump case in Washington as the appeals process plays out. If President Trump is reelected, he can pardon himself or appoint a new individual as U.S. attorney general, who could drop the special counsel’s charges.

Another analyst, Ray Brescia, a law professor at Albany Law School in New York, told to Newsweek on Friday that he is “concerned that a majority of the justices will find some way to stymie the prosecution by, at a minimum, putting additional procedural roadblocks before the special prosecutor, Jack Smith.” He did not provide evidence for his assertion.

“Those roadblocks will delay the case coming to trial, and certainly prevent it from reaching a resolution of that trial before the election,” Mr. Brescia said.

Harry Litman, a legal writer and law professor, wrote for the Los Angeles Times that after the Supreme Court’s hearing, “it’s more uncertain than ever” that President Trump will go on trial in the Jan. 6 case.

“Going into Thursday’s showdown, the critical question was whether the court’s opinion would permit the trial to go forward without further proceedings. In the wake of the arguments, that seems more unlikely than ever,” he wrote Thursday, adding that he believes some of the justices’ questions raise the prospect that it would also confer at least some partial immunity, further eroding Mr. Smith’s case.

Notably, some justices appeared to say that they weren’t concerned with the timing of the case and are more focused on the issue of presidential immunity.

“I’m not focused on the here and now of this case,” said Justice Brett Kavanaugh on Thursday. “I’m very concerned about the future.” Justice Neil Gorsuch agreed with his statement. “I’m not as concerned about this case so much as a future one,” he said. “We’re writing a rule for the ages.”

Meanwhile, Chief Justice John Roberts suggested that he might ask the Washington appeals court to carry out a further review of its previous order that scrapped President Trump’s immunity arguments.

“Why shouldn’t we send it back to the court of appeals?” Justice Roberts asked Michael Dreeben, who argued on behalf of Mr. Smith’s team. “What concerns me is, as you know, the Court of Appeals did not get into a focused consideration of what acts we’re talking about or what documents we’re talking about,” the chief justice added.

However, based on their comments, the justices appeared poised to reject President Trump’s arguments that he should enjoy full immunity from prosecution because he was the president and acting in his official capacity.

The trial in the case was first scheduled to start in March 2024, but due to appeals and other proceedings, the case has been at a standstill. Only one of his four criminal cases has gone to trial, which is currently ongoing in New  York City.

The former president had requested the judge in the New York case to allow him to attend the Supreme Court’s hearing on Thursday. But the judge denied the request, mandating that President Trump remain in court for the trial.