Law professor: Trump delay in other cases “opens a window” for Fani Willis to hold trial within weeks

Delays in Donald Trump's upcoming federal criminal trials could give Fulton District Attorney Fani Willis an opening to try the former president and his key alleged co-conspirators within weeks, legal experts say.

The Supreme Court's recent decision not to expedite the consideration of Trump’s immunity claim regarding charges related to overturning the 2020 election was widely considered a win for the former president, whose legal tactic has been to delay the proceedings until Election Day. Trump is trying to “stall” his trials with the hope they will be delayed until after the election,  David Schultz, professor of political science at Hamline University, told Salon. However, his delay tactics might push one or more trials into the general election season which could be detrimental to his candidacy.

“Criminal trials during the general election could be the October surprises that hurt his campaign, especially with a late October conviction if it were to occur,” Schultz said.

While the D.C. trial is set for March 4, preparations are on hold as Trump argues that the D.C. Circuit Court of Appeals should dismiss the federal election interference case because presidential immunity shields him from prosecution. Trump's documents trial in Florida, which is scheduled for May, is also widely expected to be delayed.

Yet another case is brewing before the Supreme Court, which has significant implications for the criminal prosecutions of the former president and could provide additional grounds for Trump to seek a delay. Earlier this month, the Supreme Court agreed to hear an appeal brought by a man charged with "obstruction of an official proceeding" relating to Jan. 6, 2021, who is seeking to have a criminal charge dismissed which claims that he obstructed an official proceeding. A favorable decision for the defense could undermine the two counts in Trump's indictment based on “the same theory,” legal experts told Salon.

Considering the apparent delays in the federal cases that may not proceed this spring, it “opens up a window” for Fulton County District Fani Willis to potentially pursue the Georgia 2020 election subversion case against Trump and his allies in February, suggested ​​Clark Cunningham, a professor of law at Georgia State University.

There are “a number of reasons” why it makes sense for the Georgia trial to go first, Cunningham pointed out, explaining that Willis has four cooperating witnesses. A “simplified trial” including Trump and co-defendants like campaign lawyers Rudy Giuliani and John Eastman could take place before February to resolve the case before the election.

If Willis waits until August to begin, she risks facing pushback from Trump's legal team, which has already argued that the trial would fall during a general election campaign.

“That would be the most effective election interference in the history of the United States, and I don’t think anyone would want to be in that position,” Trump’s lawyer Steven Sadow said. 

Even more important, if the trial isn't concluded by November and Trump is elected again, he's immediately going to file a motion in federal court to pause the ongoing case during his term in office. “I think there's a pretty good chance that he would succeed in that effort,” Cunningham said.

Last week, Trump’s legal team asked a judge to toss Trump’s Georgia 2020 election criminal racketeering case on First Amendment grounds, arguing that the indictment must be dismissed ahead of trial since the First Amendment “not only embraces but encourages exactly the kind of behavior under attack in this Indictment.” 

Cunningham said he would find it “surprising” if Trump’s lawyers in Georgia haven’t made a similar presidential immunity argument that's been made in the D.C. court, which the judge has not decided on yet. 

Even though the Supreme Court rejecting the request by Smith to fast-track arguments on whether Trump has any immunity from federal prosecution for alleged crimes he committed while in office is a victory for Trump, it’s possible it’s also “just the opposite,” Cunningham suggested.  

“It's possible that the Supreme Court is not planning to review this issue and if they don't want to review the issue, this is the fastest way to get the case on track,” he added. “But that's speculation.” 

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

Alternatively, if the judges review it and the Supreme Court subsequently accepts it, “it's very hard to see how that case is going to go to trial in March or even much anytime in the spring,” Cunningham said.

The Supreme Court’s “public credibility is at an all-time low,” as it's increasingly viewed as a “politicized institution,” he explained, adding that now the court is also tasked with taking on another important case.

The Colorado Supreme Court decided last week to disqualify Trump from the state’s 2024 ballot for his role in the Jan. 6 insurrection. The case is likely to head to the U.S. Supreme Court in the weeks ahead.

The Colorado case will likely take priority over Smith’s request since it’s “more pressing” and has “broader implications across all 50 states,” Schultz said.  

Affirming Colorado’s decision would result in additional lawsuits in different states and likely lead to "more disqualifications." This has broader implications for Trump’s candidacy as it removes him from the ballot, Schultz explained. 

Taking on the Colorado case would also put the Supreme Court in the “hot seat,” convincing the chief justice to “stay out of the presidential immunity issue,” partly because they may feel that the former president presents a “very, very weak case for immunity and therefore doesn't require Supreme Court view,” Cunningham said.