The GOP’s Trump Problem— A Closer Look

​ Last November, following Donald Trump’s announcement that he would be running for president in 2024, I addressed the dilemma faced by the Republican Party in selecting a nominee. At the time there was a question as to how many challengers Trump would have although it seemed likely that there would be six or more. That would virtually guarantee that he would win enough primary elections to assure him of the GOP’s nomination. It was also clear that the DOJ would be forced to try to hold him accountable for his actions in inciting the January 6th attack on the Capitol as well as for his having commandeered a treasure trove of classified government documents. The big unknown at the time was whether his legal problems would catch up with him before he could sew up his party’s presidential nomination. While that issue has now come more into focus, there are still clouds of uncertainty hanging over this issue posing a serious problem for the Grand Old Party.

  Since then, Trump has become the subject of four separate indictments, two in federal district courts for his alleged misdeeds referred to above, one in a Manhattan state court for his alleged role in making a hush-money payment to Stormy Daniels prior to the 2016 election and the fourth in a state court located in Atlanta, Georgia for his alleged participation in a wide-ranging conspiracy to overturn the results of the 2020 presidential election. As more fully explained below, it remains far from clear when these cases are likely to be tried notwithstanding the fact that they are all subject to “speedy trial” requirements. Trump, of course, is no stranger to our nation’s judicial systems and has demonstrated great skill in delaying cases in which he has been named as a defendant. More to the point, he undoubtedly intends to use those well-honed skills to delay the trials in all of these cases until after the 2024 elections.

  Jack Smith, the Special Prosecutor in charge of the two federal cases has stated that he would like his cases to be tried before the Republican primary elections even begin so as to enable the voters in those elections to become fully informed about Trump’s actions prior to casting their votes. He is also motivated to seek an early trial in both cases because of the DOJ’s rule against conducting a trial when it might affect the outcome of an election. Alvin Bragg, the Manhattan District Attorney, has already secured a March 25, 2024 trial date for the “hush-money” case, but he has indicated his willingness to defer that trial to accommodate the trial of either of the federal cases. Fani Willis, the Fulton County District Attorney, has requested a March 4th trial date for her case.

  The problem, of course, is that trial dates are not set by the litigants, but rather by the presiding judges and those judges are largely free to move the trial dates as circumstances dictate. Although the public has an interest that the trials should come well before the elections, it’s up to the presiding judges to take their interests into consideration in setting trial dates. Judge Aileen Connor, who is presiding over the Mar-a-Lago documents case, has set a tentative trial date of May 20, 2024. That date, however, is unlikely to remain fixed as Judge Connor has already demonstrated on three separate occasions that she is willing to make accommodations to former President Trump who appointed her as a federal court judge. The likelihood that she will acquiesce in granting a motion by Trump to delay the trial beyond the 2024 general election has already prompted Special Counsel Smith to streamline his election interference case so it can proceed to trial in early 2024.

  The last thing the Republican Party wants is to have any of the trials take place after Trump has been nominated and before the November 2024 elections. This would be the worst possible order of events as the Party would be locked into supporting a candidate whose misdeeds would have become a widespread subject of conversation right before the general election. Indeed, it would be almost as bad if one or more of the trials were to take place in the Spring of 2024 after Trump had won enough primary elections to entitle him to receive the GOP’s nomination but before the Party’s national convention in July. In that case the Party’s leaders would have to decide whether Trump had become too toxic to win in a general election and simply disregard the will of their voters. They faced a similar choice in 2016, but at that time most Americans only knew Trump as the business mogul appearing weekly in the TV show, The Apprentice, and the Party’s leaders had some reason to believe they might be able to control him. That was then; now things are clearly different.

  It already seems clear that Fani Willis’ RICO conspiracy case will not be tried until well after the 2024 elections. This is a wide-ranging indictment currently involving nineteen defendants, each of whom gets to challenge potential jurors and make any number of motions that will certainly retard the case’s progress. One of the defendants, Mark Meadows, has already made a motion to remove the charges against him to a federal court. It’s anticipated that many more procedural motions will be made once all of the defendants have been booked and entered a plea. Past experience reveals that other RICO cases brought by District Attorney Willis have taken over two years to get to trial. Still, even a long deferred case can still pose certain problems for the GOP. That’s because the defendants’ motions causing the anticipated delays may involve publicly available court documents containing sworn statements detailing Trump’s nefarious activities.

  The case filed in the U.S. District Court in Washington, D.C. relating to Trump’s efforts to reverse the outcome of the 2020 presidential election is clearly the most problematic from the GOP’s perspective. That case is now before Judge Tanya S. Chutkan who has called an August 28th court conference in which she intends to set a trial date. Special Counsel Smith has requested that the trial commence on January 2, 2024 and Trump’s attorneys have responded requesting an April 2026 trial date. Judge Chutkan has already expressed concern over Trump’s posts on public media which pose a threat to trial witnesses, potential jurors and others associated with the case. Indeed, those posts have already prompted threats on the lives of Judge Chutkan and members of the grand jury in the Georgia case. Because incarceration, the usual response to prejudicial pre-trial statements by a defendant, poses certain problems, Judge Chutkan seems to be leaning toward setting an early trial date..

  As a former criminal defense attorney, Judge Chutan is likely to be sympathetic to the needs of Trump’s counsel for time to review the literally millions of pages of documents amassed by the prosecutors in preparing this case. Nevertheless, she is unlikely to set a trial date after the 2024 election. More likely than not, she will set a trial date in the Spring of 2024 which would come after most of the Republican primaries will have taken place, but before the Party’s national convention which is currently scheduled to be held in Milwaukee betweenJuly 15-18, 2024. Twenty-six states (including California, Texas, Florida, Texas, Illinois, Michigan, Ohio, Georgia and North Carolina) are scheduled to have their Republican primary elections before the end of March, 2024. Moreover, most of these primary elections will have occurred on or before Super Tuesday (March 5th) which means that there is a very strong possibility that Trump will have captured enough electors to seal his nomination before a trial in this matter even begins.

  Trump has already announced that he intends to make a motion to have Judge Chutkan removed from the case. The chances of that actually happening are virtually nil as Trump cannot point to any reason why Judge Chutkan is biased against him other than the fact that he regularly launches verbal attacks against African-American women (including Judge Chutkan, herself). This is a highly doubtful reason for disqualification as it would allow any defendant to have the presiding judge changed simply by directing verbal attacks at the judge.

  Trump will also undoubtedly try to have the case transferred to a court outside of Washington, D.C. where he won less than 6% of the votes in the 2020 election. While this is a shockingly low percentage of votes, it also may not constitute a recognized basis for transferring the site of his trial. Trials are normally held in the judicial district in which the defendant’s alleged wrongful acts took place. In this case all such actions took place in Washington, D.C. Still, it’s well-recognized that a defendant can have a case against him/her transferred to another district if it can be shown that the defendant cannot receive a fair trial in that district. 

  Typically, a jury pool’s bias against the defendant is based upon the actions of others and not the defendant. Trump’s unpopularity in Washington is essentially due to his own policies and actions as President and to a lesser degree to the bad press he regularly receives on the editorial pages of the Washington Post. This could conceivably be deemed to be sufficient; however, that does not mean that the case will be transferred to where Trump has indicated he will request; namely, to the  deep red State of West Virginia. It just as easily could be transferred to a federal court in Virginia or Maryland, both of which have elected Republican governors in the last 10 years. If the case is transferred, that would cause the appointment of a new presiding judge and could delay the trial date until after the 2024 elections. That doesn’t seem likely unless it lands in the courtroom of a judge like Aileen Connor who was appointed by, and who may feel beholden to, Trump.  There are only two (of six) potentially such judges sitting in the Eastern District of Virginia and none in the State of Maryland.  

  There’s not much that’s likely to happen between now and March 5, 2024 that will change the likelihood that Trump will have sewn up the GOP’s presidential nomination by then. There are two candidate debates now scheduled: one in Milwaukee on August 23rd and the second in Simi Valley, CA on September 27th. A third debate is being considered for somewhere in Alabama in October; however, both the exact date and place of this debate are yet to be specified. Trump has already announced that he will not attend the first debate (as he has nothing to gain by doing so) and only two of the remaining candidates (Chris Christie and Asa Hutchinson) have shown any inclination to attack Trump. Thus, even assuming that Trump relents and participates in the remaining two debates, it’s still highly unlikely that these debates will accomplish anything other than to prompt a few of the currently announced candidates to withdraw from contention. While this may cause anti-Trump Republicans to coalesce around one or two of the remaining candidates, it still seems unlikely that it will prevent Trump from winning the vast majority of the early primary elections.

  All of this means that the leaders of the Republican Party are likely to be faced with the dilemma of either rejecting the choice of their voters or again acquiescing in the nomination of Trump whose misdeeds will likely have been adjudicated and reported nationwide in the media. As he did in 2016, Trump has refused to commit to support the campaign of a Republican presidential nominee other than himself. Considering Trump’s vindictive nature, the possibility that he will not lend his support to another Republican candidate cannot be lightly ignored as it would virtually assure President Biden’s re-election. Trump, of course, could change his mind (as he often does) if he considers that it’s more in his interest to have a Republican win the election than reap vengeance on the Party that denied him its nomination.

  The only good news for the GOP leaders is that they don’t have to face that decision until late July by which time any trial involving Trump that’s going to take place before the Fall elections will have already been concluded. That will enable them to at least assess Trump’s chances of success in the general election before having to make their decision. The luxury of time also allows them to assess other possible factors such as an interim deterioration in the nation’s economy or in President Biden’s health. Weighing in the other direction is the possibility that Liz Cheney may carry through on her threat to run as a third-party candidate as a way of denying Trump a chance to be re-elected.