Get ready to add criminal trials to campaign chaos

TRUMP

The calendar for the 2024 presidential campaign just became a lot more complicated.

Not the primary calendar. The trial calendar.

Last week, former President Donald Trump was arraigned in Manhattan on felony charges stemming from a hush money payment to a porn star.

Given the Dickensian pace of court proceedings in New York, Trump’s trial won’t begin until next year, right in the middle of the election campaign.

His lawyers are expected to file motions challenging the case in August, just in time for the first GOP presidential debate. Those preliminary battles could go all the way to the Supreme Court.

That isn’t the only potential train wreck on the horizon.

Trump faces three more possible indictments: a Georgia prosecution based on his attempts to reverse that state’s 2020 election result; federal charges over his hoard of classified documents at Mar-a-Lago; and charges stemming from his role in the Jan. 6, 2021, plot to stop Congress from certifying Joe Biden’s victory.

“The odds are very small that any of these cases would get to trial by the end of 2023, even if all the indictments landed tomorrow,” Donald B. Ayer, a former top Justice Department official, told me last week.

That means the entire 2024 campaign, from the Iowa caucuses next January through Election Day in November, will be inextricably tangled with Trump’s legal travails.

Now add his interest in keeping the drama going. He’s managed to profit from being a criminal defendant, at least in the short run.

The indictment produced a surge in his support among Republican voters. A Reuters/IPSOS poll released Friday showed Trump leading his nearest GOP rival, Florida Gov. Ron DeSantis, 58% to 21%. Two weeks earlier, the same poll showed a smaller margin: 44% to 30%.

The court battle is helping him raise money, too. Trump’s campaign claims it has collected more than $13 million in new contributions since the news of his indictment.

Trump may have a long-term legal strategy in mind, too. A Justice Department opinion holds that a president may not be indicted while he’s in office. The same reasoning suggests that a sitting president can’t be convicted or imprisoned. If he makes it back to the White House in 2025, Trump will inevitably claim he’s home free.

So what should Attorney General Merrick Garland and the Justice Department do?

The Justice Department has a policy against indictments or other actions that might appear political, especially late in an election year. It’s often called the “60-day rule,” although it isn’t a formal rule, and the 60-day benchmark isn’t official.

In practice, the rule is often interpreted more broadly to prohibit any action that could appear to influence an election, purposefully or not.

But that hasn’t prevented the Justice Department from indicting politicians as late as the summer of an election year. Rep. Chris Collins, R-N.Y., was charged with securities fraud two months before his 2018 reelection. (He won, but later resigned.) Sen. Ted Stevens, R-Alaska, was charged with failing to report gifts from a donor three months before the 2008 election. (He lost, but was later exonerated.)

In any case, Trump’s assumption of martyrdom to cement support among GOP voters puts Garland in a paradoxical position: He can’t know whether indicting Trump will hurt him or help him.

And legal scholars argue that a decision to withhold an indictment merely to avoid an appearance of political interference is a political act, too.

Trump’s campaigns in 2016 and 2020 created chaos in our political system. Now his 2024 campaign has pulled the judicial system into the toxic mix.

So Garland may have no choice other than to ignore the noise and follow his own oft-repeated mantra: “We will follow the facts and the law, wherever they lead.”