How Jack Smith’s Dream Scenario for Convicting Trump Before November Could Depend on a Delay From Judge Cannon

If the Florida jurist pushes off her trial, the special counsel could make use of that vacancy to press his January 6 case.

Drew Angerer/Getty Images
Special Counsel Jack Smith on August 1, 2023, at Washington, D.C. Drew Angerer/Getty Images

Amid a blizzard of appeals and motions, the possibility is emerging that if President Trump’s May 20 trial for mishandling classified documents at Mar-a-Lago is delayed, his other federal criminal trial, for allegedly seeking to overturn the 2020 election, could slot into that date. 

Paradoxically, a delay in the Mar-a-Lago case — Mr. Trump wants it to be “indefinite,” given his status as the frontrunner for the Republican presidential nomination — could ensure that the January 6 case happens before the election. That could constitute something like a dream scenario for Special Counsel Jack Smith.

That zero-sum arrangement, while not fully fleshed out, is an emerging possibility as Mr. Smith’s two prosecutions appear increasingly tied at the hip. In Florida, Judge Aileen Cannon has kept that May date on the books while also allowing for the possibility new developments in the classified documents case could warrant a delay.

At the District of Columbia, Judge Tanya Chutkan’s case awaits word from the Supreme Court on the crucial issue of immunity. She has already vacated her original trial date of March 4, and the United States Court of Appeals for the District of Columbia Circuit, having rejected Mr. Trump’s claim that the January 6 case against him is barred by immunity and double jeopardy, has given its green light for it to continue.

Mr. Trump has requested an emergency stay from the Nine. No word yet on when they might rule on that petition, which asks for the 45th president’s “claim of immunity to be decided in the ordinary course of justice.”

The court can act at any time in respect of Mr. Trump’s petition because it is on its emergency, rather than the ordinary, docket. The longer it waits, the greater the likelihood that Judge Chutkan’s trial grows close to the time claimed by Judge Cannon. In November, she told both sides that she was “having a hard time seeing how realistically this work can be accomplished in this compressed period of time, given the realities that we’re facing.” 

Even if the Supreme Court turns back the appeal, Mr. Trump is entitled to “defense preparation time” before the case resumes, under the assumption that the months spent on his appeal are separate from the work needed to mount a defense at trial.

The time elapsed between Mr. Trump’s first appeal on December 8 and the original trial date of March 4 is around 80 days of preparation time. Adding 80 days to March 4 would bring Judge Chutkan to May 23, nearly contemporaneous with Judge Cannon’s date.

If Judge Cannon, though, keeps her date, then the January 6 trial could be pushed deep into the summer, placing it perilously close to November’s election. It is unlikely that either judge would approve of Mr. Trump standing trial simultaneously before both of them, given the Sixth Amendment’s guarantees to the accused with respect to an impartial trial. 

Judge Chutkan, whose rulings have been consistently unfavorable to Mr. Trump, appears to allow the possibility of a summer trial. In the context of another case, she noted earlier this month in court, “I hope not to be in the country on August 5,” and added that if she is on these shores, it will be because “I’m in trial in another matter that has not yet returned to my calendar.” That is in reference to the Trump matter.

Judge Cannon is likely aware of this Jenga-style scheduling, and it could be why she has not yet vacated her May date despite telegraphing consistent skepticism as its feasibility for a case that involves what she calls “voluminous” amounts of discovery and reams of classified information. Mr. Trump has signaled that he plans to file to dismiss the case, which could induce further delay.

The calculus for Mr. Smith is likely becoming clearer. It is unlikely that both of his trials can be staged before the election, when Mr. Trump could well take back the White House and, as president vested with all of the executive power, crush Mr. Smith’s ambitions. A canny litigator, he likely sees the January 6 case — before a friendly judge and a likely sympathetic jury drawn from the ultramarine blue District of Columbia — as one with a cleaner path to a conviction. 

A delay from Judge Cannon — which Mr. Trump fervently seeks — could be a Pyrrhic victory for the 45th president if it makes room for Judge Chutkan and her jury to hear the charges, and bring in a verdict, against Mr. Trump. If she makes a move for May, Mr. Trump’s last hope to avoid a trial before the election could be winning a delay from the Supreme Court.

The New York Sun

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