The Enormous Pressures About to Land on Judge Tanya Chutkan

The Supreme Court seemed todrop a bomb this week when the justices agreed to hear Donald Trump’s claim that he is immune from prosecution for trying to overturn the 2020 election. But the fallout may not be as clear-cut as it seems.

Almost immediately after the court’s order, a consensus seemed to form among the pundit class: that it will now be impossible for Trump’s trial in Washington to take place before the election. Here is the reality — tentative and messy, perhaps, but true nonetheless: Trump’s trial in Washington can still start before November given the time available on the calendar. Trump’s trial also should start before November given the intense public interest.

Whether it will start before November at this point will ultimately be up to the Supreme Court and presiding U.S. District Judge Tanya Chutkan — who may soon have to confront one of the most challenging and politically controversial legal questions in American history as the result of a confluence of events that she had nothing to do with.

Put simply, will she really force a presidential nominee to sit in court in the final days of a campaign rather than hit the trail in Wisconsin?

Let’s begin with the conventional wisdom and the anxiety among Trump opponents in the wake of the Supreme Court’s order.

The schedule that the court set for Trump’s appeal on the immunity question — with oral argument scheduled for late April — could lead to a potential ruling in June. That would leave relatively little time for a trial before the November election, particularly given the parallel 2024 presidential campaign. Indeed, the conservative justices are arguably engaged in their own form of election interference by potentially slow-walking a relatively straightforward legal proceeding in a way that could ultimately swing this year’s presidential election.

And there are still ways the Supreme Court can delay the proceedings further. While it is likely to be too much for even the conservative justices to endorse Trump’s absurd argument for immunity, they could send the case back to Chutkan with instructions to conduct some further analysis of the allegations against Trump to ascertain whether some of them might plausibly be covered by a newly created zone of presidential immunity for crimes committed while in office. Something similar happened when the Manhattan DA’s office went up to the Supreme Court while the office was trying to obtain Trump’s tax returns, and the result here could be further delay on an already tight calendar.

Let’s assume, however, that the justices issue a ruling in June that rejects Trump’s bid for immunity, which is what should happen on the merits. The situation at that point will get much more fraught, and it will fall to Chutkan to make some difficult choices with no real precedent.

Chutkan has said Trump’s political schedule should not affect her decisions. That is a sound position both generally and also specifically as to Trump, since his whole campaign is on some level an effort to avoid facing a jury in this case and incurring the consequences of a likely conviction. No reasonable, nonpartisan judge would indulge the effort.

Chutkan has also recognized that the public has a strong interest in a speedy trial, and indeed, a federal statute requires judges to set trial dates that account for “the best interest of the public.” This is the exceedingly rare case in which we do not have to speculate on the matter. Americans have repeatedly told pollsters — nearly two-thirds of them, including roughly one-third of Republicans — that they want to see a verdict in the case before the election. It is not hard to understand why. American voters want information that can — and should — inform their votes for the highest office in the land, and they deserve to get it.

How might this work?

Chutkan has said she would give Trump several months to prepare for trial, so if the case comes back to her from the Supreme Court in June, she could be looking at the prospect of a trial beginning in September or later. There would be at least two sets of issues for her to confront, but neither would be prohibitive in moving forward.

First, there is a line of argument that holds that a trial before November would somehow run afoul of formal and informal Justice Department policies that suggest that it would be improper for prosecutors to seek a criminal trial shortly before an election if the defendant is on the ballot. This is simply not true if you familiarize yourself with the relevant material. The policies are intended to protect defendants from significant investigative and pre-trial steps that could become public and influence voters prior to an election but before the defendant has an opportunity to fairly respond in court; they do not apply to a full trial before an election, nor do they constitute some sort of free-floating constraint on the Justice Department’s obligation to the American public to enforce our federal criminal laws, even if doing so might burden a high-profile candidate’s campaign or annoy his supporters.

In particular, there is nothing that prevents the Justice Department from seeking a trial in a case that was charged well in advance of an election, and any such rule would be absurd: The Justice Department would never be able to proceed to trial if the defendant were a candidate for public office.

In fact, the Justice Department itself confirmed this interpretation of the relevant policies in court on Friday during a hearing in Trump’s classified-documents case in Florida, where trial scheduling has also been at issue. Smith’s team told presiding Judge Aileen Cannon that there are no DOJ policies that prevent cases that have already been charged from going to trial in the run-up to an election, even if the defendant is on the ballot.

As importantly, any guidance that might conceivably apply to Justice Department prosecutors does not bind Chutkan. As the presiding judge, she could schedule a trial even over the Justice Department’s objection if she wants to. This would be a remarkable turn of events, but as a practical matter, the department’s only real recourse at that point would be to try to dismiss their own indictment against Trump to stop the proceedings from going forward — a step that is extremely hard to envision.

The second set of issues concerns the political calendar. Trump will almost certainly claim that it would be unfair to force him to stand trial in Washington rather than be out on the campaign trail in the final stretch of the general election campaign and that this itself would be a form of “election interference” on the part of prosecutors and the judge.

There is little question there would be a huge outcry from his supporters in this scenario, but there is no good reason they should be able to exercise a veto over this process.

Crucially, Chutkan also has some options that she can explore to mitigate any collateral effects on Trump’s ability to campaign. She could, for instance, hold the trial only three or four days a week, leaving Trump the remainder of the week to travel the country and campaign. She could hold the trial on alternating weeks, allowing Trump to campaign in the weeks in between trial weeks. She could hold half-day trial days, leaving Trump the remainder of the day to travel to closer states and to campaign nationally through media appearances. (Trump did, after all, accuse Biden of winning the last election from his basement.)

The trial also does not need to end before November, though that is far from ideal. Chutkan could plausibly begin the proceedings with the understanding that they would extend past Election Day if necessary. Trump’s lawyers would still deliver an opening argument and have an opportunity to cross-examine every witness, so Trump would still be able to present a defense in real-time, and in any case, there is no good reason for the judge to short-circuit the process as a result of Trump’s self-serving delay tactics. Of course, if Trump were ultimately to defeat Biden, the continuation of a trial through the post-election transition period could prove unsustainable, but a scenario like this would still allow the proceedings to move forward in the run-up to the election and for the public to learn at least some of the information that large numbers of them say they want before casting their ballots.

The Justice Department has options that can influence this process, as well. Smith and his prosecutors have said they anticipate their case taking four to six weeks, but at this point, I suspect they have already begun the process of seeing if they can streamline the testimony and evidence for a shorter trial presentation in the fall. This would be an agonizing decision — prosecutors do not like running risks or holding back on evidence, and this case is as high-stakes as it gets — but that would be the smart thing to do at this point out of sheer necessity for their case.

All that said, I share the view that holding this trial before November has become materially harder in the wake of the Supreme Court’s order. The calendar is tight, and it would take a considerable level of fortitude on the part of Chutkan, who would need to be willing to court an incredible amount of public attention, controversy and blowback. The threats to her would certainly increase, which is another reason why it is important for analysts and commentators to be clear-eyed about the stakes and the challenges for her both personally and professionally as she navigates this extraordinary and unprecedented process. She might also face blowback from Trump’s political opposition if she adjourns the trial past the election, though that would likely be far less intense.

Still, if Chutkan can manage it, she should hold the line. It should not have fallen to her to make this happen, but if Trump’s criminal case comes back to her this summer from the Supreme Court, she should do her best to put the case on the quickest and most reasonable trial schedule that she can devise, even if some on the Supreme Court are working overtime to help Trump to prevent this from happening.

The law, public opinion and common sense are all on her side.