The Special Counsel Is Right to Oppose Trump’s Delay Strategy

In defense of former President Trump’s admitted strategy of avoiding trial before the November election, the attorneys general of Alabama and 21 other states filed an amicus brief with the Supreme Court, arguing that the Court should continue to stay pre-trial proceedings “to restore a semblance of normalcy.” The former president is facing criminal charges for conspiring to overturn the last presidential election and deprive millions of Americans of their right to have their votes counted, while simultaneously asking voters to return him to the office he resisted leaving. And his chief defense at this point is an unprecedented claim that he is absolutely immune from criminal prosecution. There’s little that is “normal” about that.

Protect Democracy filed its own brief earlier in the week (we are both counsel on the brief), arguing that the Supreme Court should deny Trump’s stay application or otherwise expedite its consideration of the case, so that the case can be returned to the trial court quickly. In their brief, the states suggest that we “said the quiet part out loud” when we pointed out that there is a strong public interest in allowing the case to go to trial, including (but not only) because voters will be deprived of relevant information if Trump succeeds in delaying it much longer. But there’s nothing remarkable about that recognition. To suggest otherwise would be to ignore what is happening right in front of us. Trump certainly isn’t being quiet about it. He argued in his stay application: “President Trump is the leading candidate for President in the 2024 election. Conducting a months-long criminal trial of President Trump at the height of election season will radically disrupt President Trump’s ability to campaign against President Biden . . .” On social media, Trump has been even more explicit, declaring (among other things) that he “should not have to go through any fake prosecutions before the election.” The states seemingly take no issue with Trump’s admission that he would prefer to run for reelection without the hassle of having to answer for alleged crimes that bear directly on his fitness for office.

But that is what’s actually at stake in the appeal of United States v. Trump. Sure, Trump is asking the Supreme Court to reach a different conclusion than the lower courts, both of which thoroughly rejected his claim to immunity. But, with little expectation that will happen, what he’s really doing is using the appellate process to run out the clock. 

Both the states’ amicus brief and Trump’s reply brief supporting his stay application seize on a Lawfare article by Harvard Law School professor Jack Goldsmith, in which he criticizes Special Counsel Jack Smith’s “rush to trial” as potentially indicative of an improper political motive. There are several ways in which we think that argument is wrong and obscures both the questions before the Supreme Court (importantly, not the trial date) and what’s at stake. Whatever the Supreme Court does with Trump’s stay application, the public has a strong interest in having this case returned to the district court for trial proceedings as soon as possible and should not be misled in the meantime—least not by their own attorneys general—into thinking that something is amiss with the prosecution when there is not. 

Here are the key ways in which we think the states (and others) get the analysis wrong: 

1.  The trial date—set by the district judge, not the Department of Justice—is not at issue on appeal.

The issues currently before the Supreme Court are limited to whether Trump’s immunity claim and the equities of the case warrant extraordinary relief in the form of a continued stay of an ongoing criminal prosecution. “The standards for granting a stay pending disposition of a petition for certiorari are well settled.” Deaver v. United States, 483 U.S. 1301, 1302 (1987). Trump must establish a reasonable probability that the Court would grant certiorari and reverse the lower courts; that he will suffer irreparable harm absent a stay; and, in close cases, that “the injury asserted by the applicant outweighs the harm to other parties or to the public.” Lucas v. Townsend, 486 U.S. 1301, 1304 (1988) (Kennedy, J., in chambers). 

Tellingly, the states say nothing about the merits of the immunity claim. Instead they focus on the “sudden urgency” with which the Special Counsel has been litigating this case, suggesting that the initial trial date (no longer on the calendar) was unfairly “rushed,” especially as compared to the length of DOJ’s investigation. And they speculate, given the proximity of the upcoming election, that the Special Counsel is improperly trying to influence the outcome. But, despite the states’ focus on it, the trial date itself is not at issue on appeal (as Trump’s lawyers acknowledged in court, it’s not immediately appealable). 

Trump was indicted by a grand jury of his peers on August 1, 2023. Shortly thereafter, the district court judge—not the Special Counsel—set a trial date of March 4, 2024, following a hearing during which she weighed the appropriate factors, including the public interest (more on that below) and Trump’s rights as a criminal defendant. (You can read a detailed description of the hearing here.) Judges have broad discretion to manage their courtrooms and the proceedings they oversee, and there has been no credible allegation that this judge did anything improper. Even if there were, Trump would be required to wait until after his trial to challenge the decision. He might also ask the trial judge to reconsider her original decision, or seek mandamus (an extraordinary remedy not likely to succeed), but so far he has done neither. Instead, he has focused on delaying the proceedings via the appellate process.

Two months after the judge set the initial trial date, Trump’s legal team filed a motion to dismiss the case on several grounds, most importantly that Trump was absolutely immune from prosecution because he was president when he allegedly violated several federal criminal laws. The district court denied that motion, rejecting the assertion of immunity, on December 1, 2023, and then two weeks later agreed to stay pre-trial proceedings pending Trump’s appeal to the D.C. Circuit. 

That stay has remained in place while the D.C. Circuit considered the appeal, but now that it has ruled (affirming the district court decision), the stay will expire unless the Supreme Court decides to extend it. That’s what Trump is asking for right now—that the Court essentially keep his case on hold while it considers a yet-to-be-filed petition for certiorari and then, if the Court grants the petition, while it considers the merits of his claim to immunity. And more than that, he’s also suggested that he intends to seek en banc review of the D.C. Circuit’s decision before he petitions for a writ of certiorari, with no reason to expect the full court will reverse the 3-judge panel. Trump—who originally advocated for a trial date in April 2026—clearly has concluded that it’s in his political interest to drag out the appellate proceedings as long as possible so that he can avoid going to trial before the November election (and, if he wins the election, put an end to the case altogether). 

But criminal defendants aren’t supposed to be able to use appeals to buy more time before trial. As the D.C. Circuit summarized, “The collateral order doctrine is intentionally narrow and selective in its membership, and is especially so in criminal cases where encouragement of delay is fatal to the vindication of the criminal law.” Khadr v. United States, 529 F.3d 1112, 1117 (D.C. Cir. 2008). That’s what the Special Counsel is trying to prevent by pressing for expedited appellate proceedings and now opposing a further stay so that the case can return to the district court. 

As Protect Democracy argues in our amicus brief:

This case should not be rushed to trial in service of any particular electoral outcome any more than it should be kept from trial for the same reason—and the courts should not put a thumb on the scale in favor of any particular outcome. Yet the latter is what defendant Trump is asking of this Court by seeking to further stay the district court proceedings so that he can avoid going to trial before the election. 

The Court should not go along with this strategy. Instead, it should either deny the stay consistent with applicable law, or at least expedite its consideration of the case as it has in comparable cases of national significance–including, for example, United States v. Nixon, Bush v. Gore, and very recently, Anderson v. Trump.

2.  In any event, the timing of the trial is not inherently unfair or suspect.

To be clear, the fairness of Trump’s initial trial date is not at all relevant to the questions before the Supreme Court. As noted above, the questions are whether there is a reasonable probability that the Court will grant certiorari and reverse the lower courts; that the applicant will suffer irreparable harm absent a stay; and, in close cases, that “the injury asserted by the applicant outweighs the harm to other parties or to the public.” Lucas v. Townsend, 486 U.S. at 1304. Thus, the purpose of a stay is to prevent irreparable harm to a petitioner when the Court is likely to both take the case and reverse the lower courts, not slow down the process or “calm the waters” for reasons unrelated to the merits of the appeal, as the states suggest the Court should do. (And, “litigation-related burdens,” such as preparing for trial, generally do not constitute irreparable harm. Coinbase, Inc. v. Bielski, 599 U.S. 736, 746 (2023). This is especially so in a criminal case, where defendants necessarily have litigation burdens from the moment they learn they are subjects of an investigation). But we think  the premise of the states’ argument is also wrong: the trial date the district court initially set is neither unreasonable nor a sign that the Special Counsel is improperly manipulating the calendar.

The states cite Professor Goldsmith (who in turn cites others) for the proposition that Trump hasn’t been permitted enough time to prepare for trial given the volume of documentary and video evidence the prosecution has turned over and the fact that “most” federal conspiracy defendants “get years” to prepare. In context, though, the timing is not clearly unreasonable. The district court set a trial date in March in anticipation of giving Trump seven months to prepare for trial (and has promised it will give Trump additional time to prepare in direct proportion to the length of the stay). This is not an inadequate amount of time to prepare a case of this nature, especially in light of the fact that Trump knew long before the indictment that he was under investigation, the Special Counsel gave Trump immediate, early discovery of witness testimony that is otherwise protected by the Jencks Act, and much of the evidence has been in the public domain for a considerable period of time. As the judge—herself an experienced criminal defense attorney—told Trump’s lawyer, “a good defense attorney would already start” preparing a defense as soon as his client was informed he was the target of a grand jury investigation. (It’s also worth noting that Trump doesn’t seem particularly interested in securing more time for the purpose of preparing. Trump objected to even receiving information and evidence from the Special Counsel during the stay, notwithstanding that he has no obligation to respond.)

While it is true that some criminal trials don’t begin until years after indictment, some begin much sooner and involve defendants with far fewer resources than Trump.  Regardless, even if reasonable minds may disagree on precisely how much time Trump should get to prepare his defense, that doesn’t suggest that he is being treated unfairly. 

The states also make much ado of the amount of time that passed before the grand jury issued the indictment in this case, as compared with the amount of time between indictment and trial—suggesting that “declining to prosecute” for so long and then pushing for a quick trial may suggest an improper motive. Aside from basing their argument on speculation about the inner workings of the executive branch (based on a couple of anonymously sourced newspaper articles), it reflects a basic misunderstanding of how criminal investigations work. The Special Counsel did not “decline” to prosecute until August 2023—rather, that’s when the grand jury ultimately returned the indictment following a lengthy investigation by DOJ and the Special Counsel. Quite a lot happened to get to that point, including the investigation and prosecution of more than a thousand individuals, besides Trump, who participated in events on and leading up to January 6th. Among other things, those cases revealed information relevant to Trump’s role in the alleged conspiracy to overturn the 2020 election (such as by demonstrating that many of the defendants acted in response to Trump‘s directions) and allowed the government and the courts to further develop the law under which Trump is charged. Thus, even if there’s reason to be critical of DOJ for not moving more quickly than it did, there is no basis for imputing an improper motive. 

Moreover, notwithstanding how long it has taken the executive branch to get to this point and why, the public interest in a speedy trial, overseen by the judicial branch,remains (or arguably is even stronger) now that the case has been charged.

3.  Neither the Special Counsel, nor the courts, are required to give Trump special treatment because he has chosen to run for office—their failure to do so is not evidence of improper motives.  

Protect Democracy has long advocated for the importance of DOJ independence from the White House on specific enforcement matters, and for upholding DOJ policies and norms that protect against politicized investigations and prosecutions. Both principles are critically important in a democracy characterized by the rule of law. As a result, the suggestion—unfounded in our view—that the Special Counsel’s conduct of this case may violate both principles is especially pernicious, particularly given Trump’s constant (and backwards) complaint that the government is being “weaponized” against him.

Section 9-85.500 of the Justice Manual provides that, “Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” This regulation is routinely reiterated in election-year guidance issued by the Attorney General, as it was by Attorney General Garland in 2022 and in the manual on Federal Prosecution of Election Offenses.  

There is no evidence, however, to support the states’ suggestion that the Special Counsel’s push for expedited appellate review in this case is indicative of an improper attempt to sway the outcome of the presidential election in violation of these provisions.

These provisions necessarily apply to aspects of a criminal case that prosecutors can control. The Justice Manual and the so-called 60-day rule (the informal DOJ policy prohibiting overt investigative steps or indictments in politically sensitive cases within 60 to 90 days before an election) therefore apply primarily before cases are charged. Once cases are charged, because they proceed under court supervision (in accordance with the Speedy Trial Act, the Federal Rules of Criminal Procedure, and constitutional considerations), the rules no longer apply in the same way (and the 60-day rule no longer applies at all). 

Of course, prosecutors should never conduct themselves in a way that suggests they are motivated by partisan objectives, even if they are no longer in unilateral control of the case—but the analysis is different after indictment. Perhaps most importantly, once a case has been charged and pre-trial proceedings are underway (which in Trump’s case happened nearly 6 months before the first primary, and well over a year before the general election), prosecutors should not be required to slow down or otherwise agree to accommodate the defendant’s desire to run for office or engage in any other activity that might render trial proceedings inconvenient. Nor can it be the case that prosecutors are prohibited from taking or advocating for any steps, at any time, that simply might be relevant to a future election (as compared to trying to influence the outcome)—as if that were even possible. And, of course, it would be absurd to create rules that would allow defendants to defeat justice simply by running for office in a country that holds national elections every two years. In other words, Trump is not entitled to any form of special treatment because he chose to run for office. Rather, under the circumstances, the politically neutral thing for both prosecutors and the courts to do now is let the case continue in the “normal” course.

Aside from turning the timing issue on its head, the states further speculate that the Special Counsel might be doing the White House’s bidding, citing to a few comments by President Biden over the past several years (though none recent)—some of them private—indicating that he considers Trump to be a threat to democracy and expressing frustration that Trump was not yet being prosecuted for his role in the events of January 6, 2021. Those comments, while certainly problematic, fall far short of demonstrating improper interference with the prosecution (indeed, to at least some extent, they suggest the opposite). Considering the publicly available evidence against Trump, the fact that the Attorney General appointed a Special Counsel to prosecute the case just days after Trump announced his candidacy, and the reaction of other institutions (e.g, the grand jury and the courts) throughout the investigation and prosecution thus far, there’s no basis for concluding that the Special Counsel is improperly motivated or influenced.

In a guide we issued last year, Investigating and Prosecuting Political Leaders in a Democracy, we explain in detail these key considerations for assessing claims of improper interference and politicization (the publicly available evidence in the case and others similarly situated; whether DOJ is following its own rules and guidelines; and how internal and external checks are responding)  and caution against drawing a  false equivalence between President Biden’s comments and Trump’s demands that DOJ prosecute his perceived enemies. 

4.  The law recognizes a public interest in the speedy administration of criminal justice—something the states turn upside down.  

The states ignore both the law protecting the public interest in the timely administration of criminal justice and the role that the public interest plays in the standard the Supreme Court is supposed to apply when considering a stay application. They argue: “Granting a stay would calm the fervor, reassure the public, and permit the normal and orderly review of these weighty issues. Properly understood, the public interest demands a stay.” In our view, this gets the public interest backwards, and it certainly is not what stays pending disposition of petitions for certiorari are for.

Although most speedy trial case law has, a practical matter, developed from challenges brought by criminal defendants following conviction, the Supreme Court has long recognized that “there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.” Barker v. Wingo, 407 U.S. 514, 519 (1972); see also Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979) (“The public . . . has a definite and concrete interest in seeing that justice is swiftly and fairly administered.”); American Bar Association, Criminal Justice Standards 12-3.1 (“The public's interest in timely case resolution.”). Furthermore, Congress explicitly recognized the public interest in expeditious criminal law enforcement when it enacted the Speedy Trial Act, which was “designed not just to benefit defendants, but also to serve the public interest.” Zedner v. United States, 547 U.S. 589, 501 (2006).

This public interest in a speedy trial is manifold: “[A] public trial protects the right of the accused to have the public know what happened in court; to let the citizenry weigh his guilt or innocence for itself, whatever the jury verdict; [and] to assure that the procedures employed are fair.” Rovinsky v. McKaskle, 722 F.2d 197, 201–02 (5th Cir. 1984). Accordingly, interlocutory appeals are rarely permitted in criminal cases precisely because “the delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law.” Di Bella v. United States, 369 U.S. 121, 126 (1962).

The public interest should also factor into the Court’s consideration of Trump’s stay application, and it is impossible to ignore the upcoming election when weighing the public interest in this case. As we note in our brief, “In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential.” Buckley v. Valeo, 424 U.S. 1, 14–15 (1976). 

The states implicitly recognize that the election is relevant: “[T]he sudden urgency has invited public speculation that this case has an improper purpose—to influence the 2024 election. . . True or not, such fears are deeply corrosive.” True or not? As though it doesn’t matter? In any event, it simply does not follow as a matter of law or logic that the answer to such fears is to delay the proceedings so that the public is never able to observe the conduct of the trial, hear the evidence for or against guilt, or know the jury’s verdict.

But even without the election, the public interest weighs heavily in the balance of the equities here. 

The charges against Trump could scarcely be more serious. He is accused of trying to overturn a presidential election and to thwart the peaceful transfer of power that is the cornerstone of American democracy.

And, as the states emphasize, three years already have passed since the events of January 6, 2021. It’s well understood that with the passage of time, “witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof.” Barker, 407 U.S. at 521.

Moreover, a delayed trial also gives Trump additional opportunity to threaten the integrity of the proceedings by intimidating the individuals involved. The D.C. Circuit largely upheld a gag order imposed by the district court judge in the case, concluding that Trump’s public attacks on the district judge, the Special Counsel’s staff, and potential witnesses—which continued even after the district court entered its order—posed “a significant and imminent risk to the fair and orderly administration of justice.” United States v. Trump, 88 F.4th 990, 1010 (D.C. Cir. 2023). This is precisely the sort of mischief Justice Brennan identified as reason to avoid delay in criminal trials. Dickey v. Florida, 398 U.S. 30, 42 (1970) (Brennan, J., concurring). “[W]hile awaiting trial, an accused who is at large may . . . commit other criminal acts.”). Indeed, Trump risks crossing the line into obstruction of justice with continued violations of the gag order.

In short, there is plenty in the public interest counseling in favor of speedy resolution of this case.

***

The former president has been absolutely clear that avoiding accountability is his top priority. Thus far, the courts have refused to go along. In lengthy and well-reasoned opinions, four judges on two courts thoroughly rejected Trump’s claim to absolute immunity from criminal prosecution. Those decisions add to earlier ones finding that Trump is not immune from civil liability for much of the same conduct at issue in the criminal case. (Disclosure: Protect Democracy is counsel in the civil case.) In total, that makes at least eight courts, including judges appointed by both Democratic and Republican presidents (and Trump himself), that have made clear that Donald Trump is not above the law.

Whatever the Supreme Court decides with respect to Trump’s stay application and forthcoming petition for certiorari, it must do the same. That includes expediting its consideration of this case—not to “rush” it to trial, but so as not to enable a delay strategy that would have the intended effect of undermining the public interest in the timely administration of justice and permitting Trump to avoid having to answer for his alleged crimes.