Trump's Trials - Supreme Court could end up delaying the Jan. 6 trial past the election

Episode Date: March 2, 2024

This week on Trump's Trials, host Scott Detrow and Domenico Montanaro are joined by constitutional expert Kim Wehle. This week the Supreme Court announced they will consider former President Donald Trump's claim that he is immune from criminal prosecution. That decision has left the federal election interference case in limbo, complicating the chances that the case will go to trial before the November election. Topics include: - Timeline for federal election interference case - Why the Supreme Court is considering Trump's immunity claim- Justice Clarence Thomas and recusal - Update on classified documents case Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Former President Donald Trump is running out the clock, now with the help of the Supreme Court. From NPR, this is Trump's Trials. I'm Scott Detrow. We want Trump! This is a persecution. He actually just stormed out of the courtroom. Innocent until proven guilty in a court of law. Another week with a major development. The Supreme Court has decided to take up the question of whether or not Trump is immune from prosecution for any alleged crimes committed while in office.

Arguments in this will begin in late April. A ruling might not come until late June. And that means the January 6th federal election interference case may not go to trial before the presidential election later this year. Then in Florida, there was a pretrial hearing on Friday in the classified documents case, and a lot was discussed, including pushing back the start date. Although so far, Judge Eileen Cannon has not officially done so. Still, it is very unlikely that this May start date that still exists on paper is reality. If you are a frequent listener to this podcast, you have probably

realized by now it is very, very hard to predict when courts are going to do something and whether the date they say they're going to do something is a real date. Somebody who knows this very well by now as well is senior political editor and correspondent Domenico Montanaro, who is here, as he is, every single week. Domenico, what are we doing here? Hey, Scott, how's it going? here as he is every single week. Domenico, what are we doing here? Hey, Scott. How's it going?

I'm just waiting. I'm just waiting. You're just waiting. We just want some trials here in Trump's trials. Yeah, we do. But we don't have any right now. So here's the key question this week, Domenico. After this Supreme Court decision to hear arguments on this question of immunity, is there any world at this point where the big federal election interference case, the one centering around January 6th, goes to trial and leads to a verdict before voters decide whether or not to put Trump back into the White House?

The short answer is yes. I mean, but bear with me. Right. Because I swear this is not a motion to delay this podcast, but this gets a little complicated. motion to delay this podcast, but this gets a little complicated. It's a bit of a choose your own adventure. And I'm going to go through a couple of scenarios for when the federal election interference case might take place, if it takes place at all. And it hinges on when the Supreme Court decides to issue an opinion on the immunity question. Some important background here. To start the clock, Judge Tanya Chutkin, who's the judge who's in charge of this case, allocated seven months for pretrial proceedings. That's all the stuff that happens before a trial even begins. Everything went on hold on December

13th, though, about four months from when Trump first was indicted in that case. That leaves about three months left for the pretrial. And a trial would last somewhere between eight to 12 weeks, like two to three months. So that clock paused in mid-December. Now we know that the court is going to hear arguments on this the week of April 22nd. Right. So what could happen? Scenario one, the court issues a ruling three weeks after the April 22nd oral arguments, which would be how long it took them to issue a decision in US v. Nixon. So follow the bouncing ball here. That would mean a decision on May 13th of this year. Add to that three months for the rest of the pretrial and a trial would

start August 2nd. With an eight-week trial, we're talking about September 27th when it would be then in the jury's hands. If it's a 12-week trial, that takes us all the way to October 25th, just 11 days before the election. That is cutting it very close, all right? And that's a, in this world, speedy timeline. That is a speedy timeline. We're talking about 11 days before the election. Scenario two, the Supreme Court does not release an early opinion.

We get their decision on June 30th, which is the last day of the term. And that's when a lot of major cases are left to. Still, you need three months of the pre-trial stuff. That means a trial start date of September 20th, right in the heart of a general election. Eight-week trial means jury deliberations don't start until November 15th. That takes us past the election already, 10 days after a 12-week trial and the cases into December. Now, these dates are somewhat speculative. There are best guesses. And you can see it's going to be really tight, though, to fit this trial in before the election. And it's all in the hands of

the Supreme Court. Our colleague Mara Liason said throughout his time in office always that Donald Trump was a stress test for all the different parts of the federal government and how they work or not work. And the judicial system is getting an extreme stress test now with these timelines and how they intersect with the very real deadlines of a national presidential election. Yeah, we may have made you a little more stressed, but hopefully understanding it a little bit better. So take a deep breath, maybe brew some tea, stick around. We will talk more about this, what happened in Florida this week, what happened in Georgia this week

with lawyer and law professor Kim Whaley. That's in a moment. Definitely a lot of tea. This message comes from NPR sponsor, SAP Concur. Stuart McLean, CFO of Brother UK,PR sponsor SAP Concur. Stuart McLean, CFO of Brother UK,

shares how SAP Concur's audit and expense tool supports their work across multiple offices. Across Europe, we have a presence in 17 countries, which obviously involves 17 different tax regulations, 17 different fiscal authorities, this this makes life complicated for us but actually with SAP Concur we're able to configure the system correctly for each of those countries we're able to configure the audit rules correctly for each of those countries so actually it gives us a lot of efficiency and good governance as well so actually for us a solution like SAP Concur makes life so much easier. Otherwise, we'd be forever checking back to regulations, checking back to documentation. Those are automatically updated in the system for us. So that's, you know, it's a big tick in the box from a governance perspective and an efficiency perspective as well.

Visit Concur.com to learn more. And we are joined now by Kim Whaley. She's a constitutional expert and a law professor at the University of Baltimore. Thanks for joining us. Thanks for having me. So, Kim, welcome. There's a lot to talk about, but let's start the conversation with Florida since we just had a big hearing in this Mar-a-Lago documents case yesterday on Friday. She didn't issue a ruling. She heard a lot of arguments. There was conversations about a late summer trial in one way or the other, but this is a little bit of a cliffhanger here. But big picture, why to you has this case been moving slower than originally expected?

One legitimate reason and one probably less legitimate possible reason, the legitimate reason being that this involves classified information. And there is a federal law called the Classified Information Procedures Act, or SEPA, that has a bunch of procedural steps that have to be implemented and followed to make sure that national security and classified information doesn't get inadvertently disclosed during a criminal trial. And in this particular trial, given that the defendants is Donald Trump and he has a penchant for using his social media voice to bully witnesses, members of the court staff, etc., I think there's a heightened concern on DOJ's side to make sure that this case about stealing classified information doesn't involve more

disclosure of classified information. So that's taken some time. The, I think, less favorable view of things in terms of this particular judge, who is a Trump appointee, is that she's slow walking it for the benefit of Donald Trump and unnecessarily just putting up procedural roadblocks. Because with all of these cases, in particular, two federal cases, Donald Trump's best friend is delay, delay, delay. Because on the merits, that is the facts and the law, his case is pretty weak. Yeah. I mean, we've all seen the pictures of the documents in the bathroom on the stage. You know, there's pretty documentary evidence in this indictment about the various ways that he allegedly stonewalled the federal government. I mean, Domenico, a lot of people have pointed out that Trump has treated Cannon much differently than the other judges overseeing cases. He has repeatedly gone to,

he has gone to closed-doors meetings with Judge Cannon and his lawyers. He appeared in court again yesterday without any of the tax or undermining that you've seen in the other cases. Well, I mean, clearly, when Trump sees that there's a judge who he feels like might be not in his favor,

like the judge in New York during the hush money case, then he kind of girds for battle like he does in politics. You know, he's one of his big things that he does on the campaign trail is like Kim was saying, kind of take people's, you know, personalities, put them on full display, use his bully pulpit or his big platforms to be able to make that person look like they're somehow biased and convince his base that these are people who are out to get him. Yeah. Yeah. So, Kim, let's shift to the bigger, I think, more consequential delay from this week, and

that is the Supreme Court hearing arguments on this big question of immunity, setting them for late April, raising a lot of questions about when the federal January 6th trial would happen. Look, a lot of people saw that appeals court decision on immunity as pretty substantial, as pretty airtight, pretty definitive. It was signed off unanimously by Democratic and Republican appointed judges, all writing as one voice. It seems like there's a lot of arguments that if it were any other question, the Supreme Court would have let that ruling stand. Why do you think the Supreme Court decided to take this up? You know, I wasn't one of the people that thought, oh, they won't touch it. For, again, one legitimate reason and one less legitimate reason.

It's a theme. The legitimate reason is that there is no precedent whatsoever for immunity for presidents for criminal liability. The only immunity that is, just to be clear, it's implied in the Constitution. There's nothing expressed in the Constitution giving presidents immunity from anything, unlike for members of Congress. But the civil immunity case, Nixon versus Fitzgerald, has a test in it that says presidents get immunity from being sued for money damages if they're acting within the outer boundaries of their official authority. And so I think what the court might be interested in doing, and it looks like from the question presented, a very broad question they put in their order saying, you know, is there immunity, criminal immunity for presidents? They might want to tinker with the boundaries of that on the theory that we don't want a situation where presidents order

drone strikes, someone, an American's inadvertently killed, and then presidents are worried they're going to be criminally prosecuted by a president from the other political party when they're a private citizen. The sort of less, you know, I think nice reason for this is that the conservatives on the court are slow walking this. They could have very narrowly named this question and said, listen, is it within the scope of criminal immunity to try to thwart the peaceful transfer of power in a presidential election based on zero information regarding election fraud? And they could have also done this very quickly. They did it with the 2020 election cases. They could do things rapidly. The fact that they're dragging this out is really a

travesty. It's going to hurt, and it should hurt, frankly, the legitimacy of the court itself. They don't need to do this, and they could be, you know, basically thwarting the ability of the American people to get a ruling by a jury on the merits beyond a reasonable doubt based on facts that get through, you know, the gatekeepers of the federal rules of evidence, the gold standard fact-finding, where a third of, you know, Iowa voters said, Republican voters, if he gets convicted of a felony, I will not pull the lever for him in November. The fact that they're possibly denying that the American public is really a travesty. And let's remember, let's just point out, because so many things have happened since then, that Jack Smith asked them to take this up in an

expedited way to skip the federal appeals court. In December, the Supreme Court said, no, this needs to move forward. And, you know, two months later, here they are deciding that they do want to hear this case. Yeah. And let's, you know, the big picture too, let's be clear, the implications. I mean, they're worried about the scope of the presidency and protecting the presidency, presumably. That's kind of the nice gloss on things. But Donald Trump's made very clear that if he's elected again, he'll use the Justice Department for retribution and vindictive prosecutions, and we can take him at his word. So I think if that happens, we'll see potentially the Justice Department being used to prosecute the prosecutors and investigators that have gotten this far in the January 6th case.

So, you know, under the guise of sort of protecting the separation of powers in the presidency, the Supreme Court's playing with fire. And the other thing I should add, too, though, it's partly Merrick Garland's fault, Attorney General Merrick Garland, for waiting so long to appoint Jack Smith, who acted very rapidly once he was appointed. for waiting so long to appoint Jack Smith, who acted very rapidly once he was appointed. If this was done earlier in this Biden administration, we wouldn't be dealing with this edge of our seats anxiety, which I think is spreading among the populace. People are, you know, really worried about this. I mean, it's really causing a lot of distress among regular people watching this

unfold and feeling completely helpless. Yeah. And most people say that they want to see a verdict before the election. I mean, there was a CNN poll that said that 64% of people think that it's essential or they prefer to have a verdict before this election. So this is something that most people want. In fact, I thought it was interesting in that 48% said that it was essential for this to happen, including 52% of independents. To me, Scott, that reminds me a lot of these head-to-head polls that we see where you've got a 48% for Biden and 52% of independents who say they don't like Trump. So much of everything has become proxy for what your party is at this point. I just have a hard time seeing the Supreme Court not thinking about

the election timeline and what it would mean to have this question unresolved before voters decide. I just have a very hard time seeing that not being a top of mind question. Yeah. And of course, you know, what's going to happen here is we've laid out in the timeline earlier. You know, we're going to have essentially if there's even a trial in these in these cases right in the heart of the general election, which Trump's lawyers are going to argue and have already signaled they're going to argue that that's election interference, that you can't have a trial that close to an election and that that's the problem. But now- Even though they're the ones trying to-

No, I'm right. This is their fault. I mean, I would argue that this is the Trump team's fault for doing this because they're trying to push this case over the edge. They could have had a trial, you know, months ago if they wanted a quote-unquote speedy trial, which is one that's there for a defendant, not necessarily for the rest of us who want to see a speedy trial. Well, and a couple other, I mean, things. One is, you know, we are going to hear this. And the Department of Justice has an internal memorandum around, you know, actions close to an election. But that's just actually indicting someone close to an election. I mean, this indictment's been pending for months. To actually have the trial finally go to, you know, to a jury verdict close to election,

that is not election interference even within the Department of Justice's definition. The second point I want to make, and it kind of gets a little bit into the Fannie Willis sideshow that we're seeing in Georgia around the potential conflict of interest about her romantic relationship in that sprawling RICO racketeering case. Right, right. This is the Fulton County DA who is leading the state-level case that kind of parallels the federal January 6th case about election interference. We have talked a lot in recent episodes about this ongoing question of whether or not her relationship with the outside prosecutor she brought in was inappropriate. That's in front of the court right now. Right. And so it's kind of a, this trial is of Bonnie Willis right now. And under Georgia Lott has to be an actual conflict of interest, like she's somehow having a romantic relationship with

one of the defendant's witnesses or one of the defendant's lawyers. But let's talk about Justice Clarence Thomas. His wife texted Mark Meadows over two dozen times during the January 6th riot and reportedly was pushing for him to get Vice President Mike Pence to thwart the election results. This is a person who is going to be, is now currently deciding whether the case goes forward against Donald Trump in a meaningful way or whether it's dragged after, you know, beyond November so he could cancel the whole thing if he's in charge of the Justice Department. I mean, that's an actual conflict of interest in the theory that is he trying, you know, worst case scenario to protect his wife. So we're not talking about that. And there's no mechanism for holding that process accountable. But, you know, it's just ironic. It's all Fannie Willis, where there's really no actual conflict

of interest based on any of the evidence that's been presented. And we do have this thing with Clarence Thomas that we're all just helpless, again, to do anything about because of the way the Supreme Court is structured and the Senate's refusal really to pick this question up, which they should really have been doing investigative hearings months ago in my view. Right now, Thomas did not recuse himself from the case the court recently heard about whether or not states can kick Trump off the ballot for engaging in insurrection. He has given no indication he would recuse himself from here. We have explored the problem in many different ways of the Supreme Court being self-regulating. Domenico, we were talking about this, though, the other day, and you had an interesting pushback on this Thomas question.

Well, I mean, look, there's certainly a question about whether it's appropriate for Thomas to be on this case, given how intimately involved, you know, his wife was in these efforts and communications about overturning the election. I mean, on the other hand, she's not her husband, right? And we haven't seen texts involving him. And, you know, frankly, if everyone in D.C. was responsible for what their spouse does, no one will go to work, probably because it's such a tight knit place. I understand what the what the pushback here is, but I think that that's what the other side of the argument is when it comes to this. At the same time, we did see Justice Rehnquist in the Nixon case in the 70s recuse himself. And he did so because of associations he had with some of Nixon's advisers and the like.

And it's really an open question, but these justices basically make the rules for themselves and they serve for life and there's no real way to make one or the other do anything differently than what they decide to do. Yeah. And I mean, the stakes here are extraordinarily high. I mean, I get that critique with respect to, well, you know, it's a spouse, but he's on the United States Supreme Court with unparalleled power, really redefining longstanding constitutional rights. I think it should be a higher standard for Supreme Court justice, not a lesser standard. And just back to the Mar-a-Lago case, Donald Trump has moved to dismiss that indictment on immunity grounds. So what I expect is the court's going to have a

long opinion with all kinds of tests and nuance and maybe some concurring opinions and a dissent, and there's going to be a new standard for criminal immunity for presidents that will give rise to a brand new round of motions. In the Mar-a-Lago case and in the January 6th case, Donald Trump's saying under the new test, these parts of the case at least have to be thrown out, and that will get us past November. All right, let me ask both of you, I think this is a week where it's a pretty clear answer, but I'll ask it anyway. What happened this week that you think will have the most lasting impact on either the cases or the election? Kim? For sure, the Supreme Court's decision to not only hear the D.C. Circuit

appeal, but to hear it in a way that blows open all kinds of questions and could push us past November, which has dramatic impact not just on the election, but the future of American democracy, frankly. I mean, I think that's obviously true. April 22nd is circled on the paper that I'm looking at right now, just because of when we might get this case or not get this case. I do think what happened in Georgia this week is interesting, too, though, with Fannie Willis, because if she's able to actually stay on this case, remember, this is a state case. It's a very strong state case. And if she's able to continue her case, Trump can't pardon himself if he does win election. He can't get this case or

put pressure on people to dismiss this case. And by the way, I don't think Fannie Willis is someone who's going to give any care for whether or not this is close to an election, given how much she's become a target of scrutiny from folks on the Trump side. I'm just going to tick off some of the big things we're waiting for at this moment. We are waiting for a Supreme Court ruling on this question of whether states can kick Trump off the ballot. As we have waited for that ruling, we saw an Illinois judge bounce Trump for the ballot for engaging in insurrection, though the effect of that is on hold as we wait for the Supreme Court ruling. And again, all indications after oral arguments was that they would rule for Trump at bar states from doing this. So we're waiting for that. We're waiting for Judge Cannon to set a date for the

documents trial in Florida. We are waiting for this Fulton County judicial ruling on what happens with Fonny Willis and her involvement in this case. As I said before, we know for sure one trial will begin on March 25th in just a few weeks. We will be there in person in New York to cover it when that happens. I don't know, guys. Am I missing anything else? Big questions that we're waiting for? I think we're wondering whether or not Samuel Beckett is writing this podcast. And we're waiting for an election to play out, but we'll be waiting for a while. That's Kim Whaley, a constitutional expert and law professor at the University of Baltimore.

Thanks for joining us. Thanks for having me. And Domenico Montanaro, thanks as always for hanging out on a Saturday. As always, always fun. We'll be back next week with another episode of Trump's Trials. Thanks to our supporters who hear the show sponsor free. If that is not you, still could be. You can sign up at plus.npr.org or subscribe on our show page and Apple podcasts.

This show is produced by Tyler Bartleman, edited by Adam Rainey, Krishna Dev Kalamar and Steve Drummond. Our executive producers are Beth Donovan and Sammy Yenigan. Eric Maripoti is NPR's vice president of news programming. I'm Scott Detrow. Thanks for listening to Trump's Trials from NPR. Support for NPR and the following message come from SAP Concur, a leading brand for integrated travel expense and invoice management solutions. With SAP Concur solutions, you'll be ready to take on whatever the market throws at you next.

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