Does Donald Trump Have to Attend His Own Trial?

Now that former President Trump faces two federal indictments, one in Florida and now one in D.C., as well as a New York state indictment and perhaps soon one in Georgia, the question of whether he needs to attend each trial in person has become more pressing. 

Back in 1957, Ernst Kantorowicz eruditely explored the role that “the King’s Two Bodies” played in medieval political theology—an analysis that Quinta Jurecic cogently applied to Trump while he was president. But former presidents don’t have multiple bodies, and the challenge of deconflicting the scheduling demands of each proceeding will be considerable—and that’s leaving aside the issue of Trump’s concurrent campaign for president.

That deconfliction may be manageable. Less easily resolved will be the inevitable issue of whether, to the extent that any federal trial goes forward during 2024, Trump will be able to take time off from attending the trial in order to campaign for president, first in the primaries and then, potentially, in the general election.

Under what circumstances can a federal defendant choose to absent himself from a criminal trial? It’s such a basic question and certainly not unique to Trump’s prosecution. All too many legal and trial management questions that have or will arise during the cases against Trump will have to be resolved in a necessarily ad hoc manner, since we have moved into unprecedented territory in so many ways. We hope that judges will act with wisdom and good faith when resolving them. But ad hoc decisions against a polarized political backdrop will inevitably open the way for criticism in which, rightly or wrongly, the judge’s personality and background, or the identity of the president that nominated her, will figure prominently. 

Wouldn’t it be nice if the question of a defendant’s obligation to attend his trial had been well settled in recurring contexts in which the extraordinary circumstances we now face were absent? Sad to say, my brief dive into the relevant cases found the issue messy indeed.

The Rule

The Sixth Amendment right to attend one’s trial and confront witnesses is generally thought to belong to a defendant. But if a defendant is willing, perhaps even eager, to waive that right, what is the legal analysis? The starting place, perhaps even the finishing place, is Federal Rule of Criminal Procedure 43. Rule 43(a)(2) flatly establishes a defendant’s obligation to attend his trial: “defendant must be present at … every trial stage, including jury impanelment and the return of the verdict.” Rule 43(b) creates a few exceptions, for misdemeanor offenses, conferences, legal hearings, and sentencing corrections. Then Rule 43(c) speaks of how presence can be deemed “waived”:

(c) Waiving Continued Presence.

(1) In General. A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances:

(A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;

(B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or

(C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.

(2) Waiver’s Effect. If the defendant waives the right to be present, the trial may proceed to completion, including the verdict's return and sentencing, during the defendant's absence.

The language of (A), addressing the situation when a defendant just chooses not to show up, highlights, for me at least, the significance of the whole subsection. Rather than undercut the broad obligation to attend created by Rule 43(a), the subsection establishes a framework for dealing with a defendant’s unauthorized absence: He has violated the rule—and presumably can be subject to a bench warrant or a contempt citation. But is the validity of the proceeding threatened? Can the trial still proceed? The rule’s answer is that, yes, it can, and the defendant will be deemed to have waived any claim that his rights have been violated by the continuation of proceedings without him.

Rule 43 has not been the subject of much Supreme Court attention. Still, in Crosby v. United States, when considering whether a trial could proceed in the face of a defendant’s having absconded before trial, the Court observed in 1993 that Rule 43 reflected its prior judgment that it was unacceptable to allow a defendant “‘whenever he pleased, to withdraw himself from the courts of his country and to break up a trial already commenced.’” Holding that Rule 43 nonetheless would not permit a trial to start without the defendant, the Court also noted that the only exceptions to the rule’s presence requirement had to come from the rule itself.

In short, the plain meaning of Rule 43, as well as the Supreme Court’s interpretation of it, appears to flatly demand that a defendant attend his trial, with no exceptions to that obligation. The Rule 43(c) exceptions address only when a defendant, absent for whatever reason, pressing or contemptuous, can, so that the trial can still proceed, be deemed to have waived his right to be present.

The Cases

The plot thickens once one moves beyond the rule and the Supreme Court’s interpretation of it, with lower courts finding far more flexibility in the rule than its text suggests.

A number of lower courts have adhered to Rule 43’s plain meaning and found that a defendant cannot unilaterally waive his obligation to attend trial. In United States v. Turner, a federal district court in the Northern District of Illinois held in 1994 that a defendant cannot simply “waive the obligation placed on him or her by Rule 43(a). There is no right to be absent.” Similarly, in United States v. Moore, a Third Circuit panel wrote that “[w]hile Rule 43 does permit the court to continue the trial when the defendant absents himself, it does not, concomitantly, vest a right of absence in a defendant. ... [T]here is no perceptible due process violation by demanding that the defendant attend trial[.]”

By contrast, in the 2016 case of United States v. Pawelski, when defendants complained that their trial judge had advised them that “participation at trial is voluntary,” the Tenth Circuit, in a non-precedential decision, disagreed with their argument, on appeal, that defendants had “an obligation to remain at their criminal trials.” Instead, it reasoned that the trial court’s statements “were consistent with Rule 43(c),” which “acknowledges that Defendants can voluntarily be absent from trials.”

The Tenth Circuit case, however, highlights why the reported cases are less than satisfying on the simple question of a defendant’s obligation under Rule 43 to attend his trial. If a defendant decides, for good or bad reason, to take some time off from his trial, the court will either allow him to do so or not. I’ve been involved in some very long cases—organized crime megatrials with multiple defendants—in which defendants took substantial hiatuses for health reasons. 

If a defendant asks in vain and the court orders him to attend, the defendant will either comply or fail to do so. If he still refuses to come, the court can issue a bench warrant for his apprehension or move toward finding him in contempt. One would not expect the judge to write an opinion. Conceivably, the defendant can, before the trial court, or later, in his post-conviction appeal, argue that Rule 43 gave him an option to sit out, but mandated attendance won’t likely figure prominently (or at all) in his appeal. 

Alternatively, if the court allows the defendant to skip parts of the trial at his own request, the defendant may not complain at all. And if he does, Rule 43(c)’s waiver provisions, to the extent they apply, will make it hard for him to argue that his right to be present was violated. Hence the Tenth Circuit’s decision, which, while offering dicta approving of the trial court’s advice to the defendants, was really focused on the defendants’ post-conviction ability to complain about their own voluntary absence.

The best vehicle for squarely testing whether a defendant has an obligation to attend all parts of his trial would be a situation in which the defendant seeks to absent himself, the trial court allows it, but the government objects. But here the government will be hard-pressed to obtain review of the trial court’s arguably improper order. Double jeopardy law bars the government from appealing the defendant’s acquittal. And there is unlikely to be a way to raise the issue on appeal if the government has obtained a conviction. The only vehicle for review—there being no provision for interlocutory review in these situations—is via a writ of mandamus, and these are rarely sought.

Except when they are. The government sought such a writ from the Second Circuit after a trial judge licensed a defendant suffering from heart disease to sit out parts of his trial. The court began its 1979 decision in In re United States, by noting: 

Normally a judge can and should compel a defendant to be present at all stages of a felony trial pursuant to Rule 43(a). We think, however, that there is a residue of judicial discretion in unusual circumstances where good cause is shown such as physical endangerment of the defendant to permit temporary absence.

It went on to “hold that a judge may in those exceptional circumstances exercise his discretion to accept a waiver of appearance from a defendant in a criminal trial,” and while agreeing with the government “generally that there is a duty on the part of a defendant in a felony trial to be present,” it remanded the matter to the trial court “for a determination of whether the circumstances are sufficient to permit the defendant, on the ground of illness, to waive his constitutional right to be present.” 

The Eleventh Circuit—in which Trump’s classified documents case is pending—appears to follow the Second Circuit’s approach, mandating a general requirement of attendance, save for extraordinary circumstances. Where the government sought to mandamus a judge for allowing defendants to skip their arraignment (since they preferred not to appear in Florida, which was seeking their extradition on state murder charges), the Eleventh Circuit quoted the Second Circuit’s approach with approval, granted the writ, and noted that since the “the defendants have not presented any good cause for absenting themselves from arraignment,” “we need not discuss the scope of any discretion in the district court to allow defendants to be absent.” Even before that 1986 decision from the Eleventh Circuit, a Southern District of Florida court in 1979 had found there to be discretion to allow defendants to absent themselves from trial where there is “a truly compelling need for the defendants[’] presence elsewhere.”

What about the D.C. Circuit, where Trump’s trial on his alleged fraudulent effort to overturn the results of the 2020 election will be? It’s hard to tell. In the 1975 case United States v. Jones, the trial was “advised by the defendant and his counsel at the conclusion of the government’s case in chief that the defendant no longer wished to participate and desired to absent himself from the balance of the trial.” That request had occurred in the wake of a disagreement between the defendant and counsel, and the issue on appeal was whether the trial court “erred in not specifically advising appellant of his right to proceed pro se.” The focus of the circuit court’s analysis was understandably on the defendant’s complaint, but it did note, “We think, under the circumstances of this case, that the trial court acted appropriately.” Perhaps one can infer from silence that the court found nothing wrong in licensing a defendant to absent himself.

Analyzing a Trump Request for Absence

If we assume that the operative legal framework comes from the cases about Rule 43, and not its text, the lack of guidance to district judges handling the cases against Trump is extraordinary. It is unclear whether Trump has a “right” to take time off from a trial. If he nonetheless seeks the court’s leave to periodically or extensively absent himself, the court may, even as it acknowledges an obligation to attend, consider giving that permission if extraordinary cause is shown. What counts as extraordinary is unclear. To be sure, many highly consequential matters are left to a trial court’s broad discretion, with appellate cases either not considering a ruling, because it went against the prosecution, or, if raised by a convicted defendant, finding it simply not to have been an “abuse of discretion.” But the general legal framework within which a judge exercises discretion is usually far more settled than it is here.

So what will happen should Trump, having failed in his efforts to delay his trials until after the general election, seek to make, at most, guest appearances at one or more of his trials in order to spend time campaigning for president? Assuming the government objects—which I can’t imagine it not doing—how might a court analyze his request? 

I suspect that a flat denial based on the clear language of Rule 43 would lead Trump to seek a writ of mandamus, contending that the district judge either failed to exercise her discretion or exercised it abusively. You’ll recall that I didn’t even raise this possibility, when discussing the general state of the law. That’s because it’s hard to imagine an appellate court considering arguments that a defendant can fairly raise on appeal if convicted. But I can easily imagine an appellate court thinking that Trump’s interest in running for president, and the citizenry’s interest in hearing from a leading candidate, might be critical interests that could not simply await appellate consideration. 

So if the trial judge denies Trump’s motion, how might an appellate court analyze it? Or more simply, how might the trial judge analyze it in the first place? I can’t possibly set out all the factors, but, in the absence of useful case law, I can offer some considerations.

As noted, Trump’s deep personal interest in campaigning instead of attending trial can easily be framed in public-regarding terms: He is the leading candidate of the Republican Party, and there is a national interest in his getting his message across. To be sure, Eugene Debs ran for president from prison, but I suspect that precedent will carry little weight (even though social media and advances in technology would give a modern Debs far more traction in a campaign). Moreover, given the presumption of innocence and risk that an indictment might be used as a partisan tool (a risk that we think a lot more about thanks to Trump’s having done just that), Trump could argue that requiring a defendant-candidate to stay in the courtroom enables his political opponents to inflict damage on him regardless of the merits of the case.

Yet the arguments for requiring Trump’s presence would also be considerable. For not only would he be out campaigning, if allowed to, but he can be counted on to make the supposed illegitimacy of the trial central to his message. His refusal to attend trial would be performative and undercut the legitimacy of the trial, since defendants always attend real trials. It is conceivable that a defendant could run for high office while on trial and through speech and action strain to show due respect for both obligations. It is not conceivable that Trump could.

The performance would surely affect the jury although in ways that are hard to predict. Might jurors take Trump’s absence as a clear indication that, for him at least, the charges are so insubstantial as to not require his presence? Or be outraged at his contempt for a proceeding that they take seriously, and have been dragooned into attending? As a Florida court noted in that 1979 case, United States v. Meinster, the defendant’s “required attendance at trial inconveniences him no more than the jurors in this case are burdened by their required attendance at each day’s proceedings.” 

Should Trump, in his public appearances during trial, speak about the case against him—because either no gag order bars him from doing so, or one does and he violates or tries to circumvent it—can the jury be prevented from hearing about his statements? Protecting the jury from out-of-court influences will be challenging enough in these cases without this additional risk. Or perhaps the prosecution will find its purposes served by capturing some of this commentary and introducing it against Trump. Ridiculous comments about a credible witness’s testimony can make for nice consciousness of guilt evidence. Managing these trials will be hard enough without a steady stream of these new issues.

In addition, the public and the government have a strong interest in the jury’s seeing how a defendant responds to the evidence against him. When explaining the common law background of Rule 43, the Supreme Court noted in Crosby that the common law demand that a defendant be present “was premised on the notion that a fair trial could take place only if the jurors met the defendant face-to-face and only if those testifying against the defendant did so in his presence.” Confrontation of witnesses is a right of a defendant, but the jury also benefits from seeing this confrontation and getting even more information with which to assess witness credibility. 

We frequently, and appropriately, speak of “accountability” as the heart of the criminal process. Yet accountability is not simply a matter of a defendant’s being charged and, if the evidence is sufficient, the jury’s finding him guilty and authorizing his punishment. It is a central feature of the trial itself. The government is held to account to show the factual basis for its charges. And the defendant is required to sit there as evidence of his criminal misconduct is introduced. Perhaps he will even come to appreciate the harm his actions have caused—though I do not kid myself as to the likelihood of that recognition here.