May 10, 2024 - Politics & Policy

Trump's trial trap: Voters to be his most important jury

Former U.S. President Donald Trump returns from a break in his trial for allegedly covering up hush money payments at Manhattan Criminal Court on May 7, 2024 in New York City.

Former President Trump returns to Manhattan Criminal Court on May 7 in New York City. Photo: Win McNamee/Pool/AFP via Getty

Here's a big reason former President Trump is so motivated to win in November:

  • If he's a private citizen, he faces years of expensive trials and could spend the rest of his life in prison if found guilty.
  • If he wins the election, the three felony cases against him that haven't gone to trial could be pushed off indefinitely.

Why it matters: Even if Trump's convicted in the ongoing New York hush-money case, voters may be the only jury that really matters this year, legal experts and people familiar with the cases tell Axios.

Driving the news: Trump's team appears to have succeeded in pushing his most serious trials until after the Nov. 5 election, so the race for the White House also has become a referendum on Trump's freedom.

  • "It really is an all-or-nothing strategy in the sense that the delaying tactic could be a complete victory if he were to be elected president," said Robert Mintz, a former federal prosecutor.
  • Judges have latitude in sentencing, but if Trump were convicted on all 88 counts across his four criminal indictments, the maximum sentencing is technically more than 600 years in prison, though it's unlikely he would ever face that.

If Trump wins, he could appoint Justice Department officials to make the two federal cases against him go away.

  • Legal experts say those cases — one in D.C. involving his alleged Jan. 6 conspiracy to overturn the 2020 election, the other in Florida accusing him of mishandling classified documents — pose the most serious legal threats to him.
  • As president, Trump also could try to pardon himself, a legally untested move.

A Trump Justice Department wouldn't be able to dismiss the state charges against him in Georgia, where he's accused of leading a conspiracy to overturn that state's 2020 election results.

  • Trump's lawyers have argued that he couldn't be tried in Georgia until 2029 if he's elected, but there's a more pressing barrier to a timely trial there: Prosecutor Fani Willis could be removed from the case, leaving its future murky.
  • If Trump wins the presidency, "he's hoping for a number of potential things that he could do in terms of self-help," former federal prosecutor Joshua Naftalis told Axios.

Zoom in: Trump's ongoing trial in New York should wrap up in a few weeks, but still could be unresolved when voters head to the polls in November if Trump is convicted and appeals — which he likely would.

  • "In the event of a conviction, we certainly can expect to see a strong appeal from the Trump defense team, but I don't think we're going to see a decision by the appeals court before the November election," Mintz said.
  • That trial also could end in a hung jury if just one of the 12 jurors disagrees with the rest on a verdict.

Zoom out: Shrewd legal maneuvering — along with some luck and prosecutors' self-inflicted errors — have made the election as much about Trump's freedom as it is about the country's direction.

  • Trump lawyers' strategy of delay, largely by burying courts in filings and motions across his four criminal indictments, has "been more effective than most people anticipated," Mintz said.

Trump's team also has been lucky.

  • In Georgia, Willis' personal relationship with her lead prosecutor has delayed the case and led to hearings into whether she should be disqualified.
  • In Florida, federal judge Aileen Cannon — a Trump appointee — has left several court motions unresolved, leading critics to question whether she's slow-walking the cases to help Trump.

A pair of rulings in Georgia and Florida this week all but ensured that those trials won't happen before November, legal experts and former prosecutors say.

Reality check: Trump's federal Jan. 6 case technically could happen before Election Day — but that's increasingly unlikely.

  • The case will be significantly affected by the looming Supreme Court decision on whether a president has legal immunity for actions taken while in office.
  • If the court rules there is immunity for some actions, Trump's team likely would file a flurry of motions claiming he was immune from prosecution — meaning more pre-trial hearings.
  • "As far as D.C. there's still a window. It's closing rapidly, but getting to trial there before the election is not impossible," said Randall Eliason, a former assistant U.S. attorney for the District of Columbia and now a professor at George Washington's law school.

Jeffrey Breinholt, a former senior career Justice Department lawyer, questioned whether Trump would have the authority as president to stop the federal cases.

  • He said he's not sure how easy it would be for Trump to "turn the Department of Justice on his prosecutors and prosecute them," as Trump has indicated he'd do if elected.

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