by , and

March 1, 2024

On Wed. Feb. 28, the Supreme Court granted certiorari in Former President Donald Trump’s appeal of his federal prosecution for election interference. This article provides an updated overview of the potential timelines for the resolution of Trump’s appeal on the basis of presidential immunity, and the expected dates for the resumption and completion of the criminal trial. As before, our analysis is based on the assumption that Trump will lose before the Court, given the weaknesses of his argument for immunity, and that he will lose in such a way that the trial can then proceed. The remaining questions we address are when the Supreme Court will reach that conclusion and how long the district court trial proceedings will take once the stay is lifted.

Our analysis suggests that the timeframe the Supreme Court has outlined makes the start of trial prior to Election Day on Nov. 5, 2024 likely. However, there is significant uncertainty about whether that trial, which is expected to last between 8 and 12 weeks, will reach a verdict by Election Day. We conclude there are three avenues through which the timing can be adjusted with the result that the jury will deliberate before voters go to the polls: the date on which the Supreme Court resolves the appeal, the length of pretrial preparations that must take place after the case returns to the trial court and before the trial can start, and the length of the trial itself.

What Happened

District court proceedings have been stayed since Dec. 13. The D.C. Circuit issued its ruling on Feb. 6, and the Supreme Court received Trump’s request for a stay on Feb. 12. (If he had not sought the stay on Feb. 12, Judge Chutkan’s initial stay would have been automatically lifted on that day, per the D.C. Circuit’s instructions.) The Supreme Court treated Trump’s motion for a stay as a petition for certiorari. That maneuver is not uncommon – in fact, it is something the Court has done with increasing frequency over the last few years. It then granted certiorari without expressing a view on the merits. The Court simultaneously directed the D.C. Circuit Court of Appeals “to continue withholding issuance of the mandate until the sending down of a judgment of this Court.” In effect, that means that the stay Judge Chutkan imposed when Trump initially filed notice of his appeal in December will remain in place until the Supreme Court resolves the immunity appeal.

What Happens Now at the Supreme Court

In granting cert, the Supreme Court set a briefing and argument schedule that is “expedited” in the sense that it is faster than both the Court’s default schedule and the schedule in a typical case. Trump’s brief supporting his appeal is due Tuesday, March 19 (20 days after the Court granted cert); Special Counsel Jack Smith’s opposition brief is due Monday, April 8 (40 days after the Court granted cert, and 20 days after Trump’s initial briefing); Trump’s reply brief is due one week later on Monday, April 15 (47 days after the Court granted cert); and oral argument is scheduled for the week of April 22 (which is eight weeks after the Court granted cert).

Notably, this schedule is slower than the most comparable cases the Supreme Court has reviewed over the past fifty years. U.S. v. Nixon is arguably the most relevant precedent. It was an interlocutory appeal in a criminal case centered around an investigation of the incumbent president, in which the Court faced a novel issue of first impression pertaining to the scope of presidential power. In that instance, the Court received a request for certiorari on May 24, 1974, and granted the petition one week later, on May 31, 1974, under an expedited briefing schedule. Oral argument was held five weeks later, on July 8, 1974, and the Court issued its decision three weeks later, on July 24, 1974. In two months, the appeal was resolved.

Moreover, this year the Supreme Court moved faster to address the other appeal Trump brought, challenging his removal from the ballot in the Republican primary in Colorado. The Court granted certiorari on Jan. 5, two days after receiving the initial petition, and set oral argument for one month later on Feb. 8. Three weeks later, the Court has yet to issue its opinion, but it is reasonable to presume that a decision may be imminent – especially because the primary will take place next week, on March 5.

This timeline is also longer than what Smith requested. In his opposition to Trump’s stay motion, Smith stated, “The government suggests that if the Court grants review, it order that applicant’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, be filed on or before ten days after the grant of certiorari; that the government’s brief on the merits and any amicus briefs in support, be filed seven days thereafter; and that the reply brief, if any, be filed five days thereafter.”

Once oral argument concludes, the Court is not bound by any rules limiting the time it takes to issue its ruling. The best guideposts available are the Court’s prior practices. The Court’s October 2023 Term concludes at the end of June 2024, with the last oral arguments set for late April. In a typical case argued in the second half of April, the Court would likely issue a decision in late June. The most significant cases are often, though certainly not always, decided on the very last day of the Term. For example, on June 30, 2023, the Court issued its opinions in Biden v. Nebraska (student loan forgiveness) and 303 Creative LLC v. Elenis (anti-discrimination laws and religious liberty). If the Court follows this typical practice, we estimate that the latest date by which we would get a decision is on or around June 30. (It is possible that the end-of-term decisions could bleed into early July. For example, the Court issued three opinions from its October 2019 Term on July 1-2, 2020.)

However, there is ample precedent for the Court to act more quickly, particularly in cases of national import pertaining to the presidency and a criminal trial. For example, in U.S. v. Nixon, the Court held oral argument on July 8, 1974 and issued its decision on July 24, 1974 – an interval of three weeks. If the Court were to follow that example here, we would receive a decision around Tuesday, May 13. Given the Court’s procedural decisions thus far, we think it is very unlikely that it would issue a decision before then. That means we can expect an opinion from the Court between roughly May 13 and June 30.

What Happens at the District Court Before Trial

Once the Supreme Court issues its decision, the stay in the district court will presumably lift and pretrial proceedings will resume. The schedule Judge Chutkan initially ordered prior to the interlocutory appeal allocated approximately seven months for pretrial proceedings. At the time the stay took effect, approximately four months of those proceedings had passed. Accordingly, if Judge Chutkan keeps the exact same schedule and delays all future deadlines by the number of days that were left when the stay went into effect, there are nearly three months of pretrial proceedings remaining before trial begins.

Listed below are the remaining pretrial deadlines under the original schedule, along with a new date according to the new schedule outlined above. To determine each date in the new schedule, we added the intervals from Judge Chutkan’s original schedule.[1]

  • Motions in limine and Suppression Motions. These pertain to what evidence the court will prevent each party from presenting during trial. They were initially due Dec. 27, 2023; objections were due Jan. 9, 2024; and replies from each party were due Jan. 22, 2024.
    • If the stay is lifted on May 13, the equivalent dates for these motions would be May 27, objections would be June 10, and the replies would be June 21.
    • If the stay is lifted on June 30, the equivalent dates for these motions would be July 14, objections would be July 28, and the replies would be Aug. 9.
  • Each parties’ proposals for voir dire questioning and proposed jury instructions were due Jan. 15.
    • If the stay is lifted on May 13, the equivalent date for these proposals would be June 15.
    • If the stay is lifted on June 30, the equivalent date for these proposals would be Aug. 2.
  • The government also had to turn over any evidence that “may be useful for impeachment or may otherwise affect the credibility of any Government witness” by Feb. 12.
    • If the stay is lifted on May 13, the equivalent deadline for this Giglio material would be July 13.
    • If the stay is lifted on June 30, the equivalent deadline for this Giglio material would be Aug. 30.
  • Further evidentiary and argument issues:
    • Both parties were also required to exchange exhibit lists they intended to use in their case in chief by Dec. 18, 2023, file objections to the exhibits by Jan. 3, 2024, and their replies on Jan. 9, 2024.
      • If the stay is lifted on May 13, exhibit lists would be exchanged by May 18, objections would be due on June 3, and replies to the objections would need to be filed on June 9.
      • If the stay is lifted on June 30, exhibit lists would be exchanged by July 5, objections would be due on July 19, and replies to the objections would need to be filed on July 25.
    • Both parties were required to exchange witness lists by Feb. 19.
      • If the stay is lifted on May 13, witness lists would be exchanged by July 20.
      • If the stay is lifted on June 30, witness lists would be exchanged by Sept. 6.
  • The jury selection process: Smith was initially required to prepare a written questionnaire to be distributed to prospective jurors, and to have met and conferred with Trump regarding the questionnaire before submitting to the court for approval, by Jan. 9. The questionnaire was to be distributed to prospective jurors one month later, on Feb. 9.
    • If the stay is lifted on May 13, the parties would submit the proposed jury questionnaire by June 9 and the questionnaire would be distributed by July 10.
    • If the stay is lifted on June 30, the parties would submit the proposed jury questionnaire by July 27 and the questionnaire would be distributed by Aug. 27.

These new schedules assume a “day-for-day” recreation of Judge Chutkan’s original pretrial schedule. Although there has been widespread speculation that Judge Chutkan would adopt such a schedule she has not explicitly made such a ruling. In her order denying Trump’s motion to hold the Special Counsel in contempt for continuing to make filings while the stay was in effect, Chutkan stated: “Contrary to Defendant’s assertion, the court has not and will not set deadlines in this case based on the assumption that he has undertaken preparations when not required to do so…. In the meantime, he is not required carry any meaningful burdens with respect to those productions” (emphasis added). Whether the emphasized sentence means that Judge Chutkan will not compress the remaining pretrial proceedings from their original schedule remains to be seen. She has significant discretion to decide how to proceed on that matter.

What Happens at the District Court During Trial

Under the two timelines we outline above, the trial will begin at the earliest on Aug. 2 (if the Supreme Court rules on May 13) or at the latest around Sept. 20 (if the Supreme Court does not rule until June 30). On either schedule, the trial will start well before Election Day on Nov. 5, 2024. Accordingly, the open question is whether the trial will reach a verdict before Election Day.

The parties have indicated that the trial would take between 8 and 12 weeks. If the trial starts on Aug. 2 and lasts eight weeks it will be submitted to the jury on Sept. 27; and if the trial lasts 12 weeks, it will be submitted to the jury on Oct. 25. If the trial starts on Sept. 20 and lasts eight weeks it will be submitted to the jury on Nov. 15; and if it lasts 12 weeks, it will be submitted to the jury on Dec. 13.

Therefore, if the trial takes 12 weeks, it would have to begin by around Aug. 9 for the case to be submitted to the jury on Nov. 1, the Friday before Election Day. If the trial takes 8 weeks, it would have to begin by around Sept. 6 for the case to be submitted to the jury on Nov. 1. Working backwards and assuming that Judge Chutkan does not compress the pretrial proceedings, the Supreme Court must issue its decision before June 17 for an 8-week trial to conclude by Nov. 1, and by May 20 for a 12-week trial to conclude by Nov. 1.

One caveat: legal analysts such as Andrew Weissmann have suggested that Smith could potentially shorten the trial itself by slimming down the case, which could also have the effect of narrowing the time needed for pretrial motions. That scenario could speed things up even more.

Exogenous Factors That Could Impact the Timeline: Trump’s Other Criminal Prosecutions

It may seem surprising to some that the trial could take place during the political season. Contrary to some speculation, there is no legal principle preventing the trial from beginning before the election; policies such as the Department of Justice’s unwritten “60 Day Rule” (which pertains to investigatory steps, not trial proceedings) do not apply here. In addition, Judge Chutkan has said that will not be a factor in her scheduling: “Setting a trial date does not depend and should not depend on the defendant’s personal and professional obligations. Mr. Trump, like any defendant, will have to make the trial date work regardless of his schedule.” Accordingly, our analysis does not contemplate further delays due to Trump’s other time commitments—aside from his other three criminal trials, each of which he has a constitutional right to attend in person:

  • Alvin Bragg’s Manhattan prosecution of Trump is scheduled to begin on March 25; it appears likely that the New York jury will render a verdict well before the D.C. trial could begin. Thus the Manhattan proceedings should not pose any hindrance to the resumption of the Washington D.C. case.
  • Smith’s prosecution in Florida over Trump’s alleged mishandling of classified documents and obstruction of justice is currently scheduled to start May 20th, but that will surely be pushed back. On Friday, March 1, Judge Aileen Cannon held a scheduling conference in that case; in anticipation, the government proposed a new adjusted start date of July 8. Trump asked for an August 12 start date but expressed a strong preference to postpone the trial until after the election. Consequently, the Mar-a-Lago trial will not begin before July 8 – and many observers believe Judge Cannon may delay it even further, perhaps until after the election. At the hearing, the judge expressed skepticism about the government’s proposed date.
  • Fulton County, Georgia’s case against Trump and his alleged co-conspirators in attempting to overturn the results of that state’s 2020 presidential election has not been scheduled yet, and probably will not be until the currently pending disqualification motion against District Attorney Fani Willis is resolved. She had earlier requested an August 5 trial date and that request remains pending.

A criminal defendant cannot be on trial simultaneously in two separate jurisdictions. Therefore, in order for a federal trial to begin in Washington, D.C. between Aug. 2 and Sept. 20, one of the other trials cannot be scheduled for the same period of time.

Conclusion

The Supreme Court’s decision to grant cert on Feb. 28 means that the trial in Trump’s federal prosecution for interfering in the 2020 election can begin before Election Day and conclude either before or after that — perhaps shortly before or shortly after. The Supreme Court Justices and Judge Chutkan can both take steps to help ensure it can feasibly conclude before that date. But even if they do not, Donald Trump may well be on trial during the final stretch of the 2024 election.

  1. Some of these updated deadlines fall on the weekend, so the dates may be slightly adjusted in practice. ↑

Filed under:

, , , , , , ,