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Indictment would be unlikely to divert Trump from campaign to courthouse

Pretrial motions could delay any proceeding past Election Day 2024

If former President Donald Trump did go to trial, it would probably knock him off the campaign trail for the trial's duration.  
If former President Donald Trump did go to trial, it would probably knock him off the campaign trail for the trial's duration.   (Tom Williams/CQ Roll Call file photo)

Since former President Donald Trump predicted the Manhattan district attorney would indict him earlier this week on charges stemming from hush money payments he allegedly paid a porn star to cover up an affair, the 3D chess players among the Beltway’s punditry have breathlessly debated whether this would hurt or help Trump’s campaign to retake the presidency. 

But, as a mere checkers player, Heard on the Hill wondered about something much more basic: Would he be too busy as a criminal defendant to be a presidential candidate?

Criminal charges wouldn’t necessarily sideline Trump in his quest to regain his seat behind the Resolute Desk. While the Constitution provides for the president’s impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors,” it doesn’t bar convicts from running, let alone those who are still presumed innocent until proved guilty. (After he was expelled from the House following his conviction on corruption charges, Jim Traficant of Ohio ran for his old seat again from a federal prison and again after his release; he lost both times.)

Obviously, a conviction and an attendant prison sentence would put a crimp on a candidate’s ability to go on a whistle-stop tour. But even if Manhattan DA Alvin Bragg — or Fulton County DA Fani Willis, who empaneled a grand jury in Georgia to look into potential charges around Trump’s efforts to overturn the results of the 2020 presidential election — indicted him tomorrow, it’s unlikely Trump would face a jury before the 2024 elections, should he decide to delay the trial.

At this point, it’s unclear whether the charges Bragg would be expected to bring could even survive preliminary motions to dismiss, said Fordham University law professor Cheryl Bader.

“I imagine there will be a very extensive motion practice,” Bader said. “This is a novel theory of law, in terms of piggybacking this falsification of business records onto another crime to elevate it to a felony.”

As Bader noted, to elevate falsifying business records into a felony under New York state law, rather than a mere misdemeanor, the books cooking must be done in furtherance of “another crime or to aid or conceal the commission thereof.”   

The other crime would presumably be violating federal campaign finance laws, to which Trump’s attorney Michael Cohen pleaded guilty in 2018.

“There may be motions around whether it can be a federal campaign finance law, or whether [‘another crime’] has to be a state law,” Bader said. “The prosecutor is taking a position that requires a bit of a contortionist approach, and so the question is whether the law is flexible enough to hold that position.”

There’s also the matter of the statute of limitations, which is two years for the misdemeanor but five years for the felony falsification charge. The charges would stem from actions taken back in 2016 — seven years ago. In New York, the statute of limitations can be “tolled,” or paused, if the defendant was not continuously living in the state, though. It’s an open question of whether moving to the White House would count, Bader said.

Trump’s attorneys would surely come up with other legal and procedural questions to raise in preliminary motions. Trying to pick an impartial jury would present its own set of challenges. 

While most judges would try to handle the issues quickly by addressing questions about the prosecutor’s legal theories and evidentiary disputes simultaneously, that wouldn’t prevent clever lawyers from filing multiple rounds of motions. And it is a near certainty that the defense would appeal any negative ruling up to New York’s Court of Appeals. And given that this case would involve a former president in the midst of another federal campaign, additional appeals to the U.S. Supreme Court would also be likely.

Just how long all the pretrial shenanigans might take is impossible to say at this point, Bader said, because so much depends on what specific charges the DA brings. But it’s certainly possible the delays could push a trial beyond November 2024. (If Trump won, it would be another open question of whether presidential immunity would prevent the case from continuing.) Even obviously doomed motions can postpone the start of a trial significantly, and the appellate process can increase those delays exponentially, regardless of courts’ efforts to fast track arguments.

Other than needing to appear in person for the arraignment, Trump would be free to do as he wished during the pretrial period. “Trump and his supporters are probably not the biggest fans of the bail reform that took place in New York, but the new bail laws require that Trump be released on his own recognizance,” Bader said.

If Trump did go to trial, though, it would probably knock him off the campaign trail for its duration.  

Defending oneself at a criminal trial is a full-time job — most trials run all day, Monday through Friday, and can take anywhere from a couple of days to a few weeks. Some judges schedule trials for just four days, reserving a weekday for their other work (and to allow jurors a respite from their duties). Even with his private jet at the ready, it’d be hard for Trump to do much in-person campaigning during the trial.

If he really wanted, though, Trump could try skipping the trial. New York’s criminal procedural law states that “a defendant must be personally present during the trial,” but it also allows defendants to waive their right to attend. Still, Bader doesn’t think that would happen. “I can’t imagine that a judge would let Trump waive his appearance at trial, and I also don’t think the defense lawyers would even request it,” she said.

And while judges impose gag orders all the time, don’t expect one here. Those orders are usually designed to protect the defendant’s right to a fair trial, Bader noted. “Trump will certainly want to speak out, and he often prefers to play things out in the court of public opinion,” she said.

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