The 2024 election year will be a year of trials
Byron York
THE 2024 ELECTION YEAR WILL BE A YEAR OF TRIALS. Every now and then, the attorney general, whoever he or she is, whichever administration he or she serves, writes a memo called “Election Year Sensitivities.” The purpose is to remind the Justice Department’s 115,000 employees that they should not allow politics to influence their work.
“Department of Justice employees are entrusted with the authority to enforce the laws of the United States and with the responsibility to do so in a neutral and impartial manner,” Attorney General Merrick Garland wrote in his version of the memo, dated May 25, 2022. “This is particularly important in an election year.”
“Simply put, partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges,” Garland continued. “Law enforcement officers and prosecutors may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”
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Now, it appears the Garland Justice Department is preparing to put the leading Republican presidential candidate on trial for most, if not all, of the 2024 presidential election year. That might affect the election, and it might give an advantage or a disadvantage to some candidate or political party. It might, in other words, blow up everything Garland wrote in his “Election Year Sensitivities” memo.
Garland might say that nothing he or his prosecutors have done was chosen or timed “for the purpose” of affecting an election. You can believe that or not. But everyone can see that the practical effect of the Justice Department’s actions will be to affect an election big time.
And of course, Garland’s Justice Department, if in fact special counsel Jack Smith indicts former President Donald Trump a second time, for Jan. 6 and actions to overturn the 2020 election, will be responsible for just two of the four trials that could entangle Trump in the election year. The other two will be the work of more openly partisan prosecutors, the elected Democratic district attorneys in Manhattan and Fulton County, Georgia.
Manhattan District Attorney Alvin Bragg has already indicted Trump, charging him with 34 so-far unexplained felony counts. A trial date has been set for March 25, 2024. In Georgia, Fulton County District Attorney Fani Willis has not indicted Trump, although that seems guaranteed to happen. There is no way to know what the trial date will be, but Willis will undoubtedly push for it to be in 2024, during the political season.
On the federal side, Smith’s prosecutors and Trump’s defense team are wrangling over a starting date for the trial on 37 felony counts in the classified documents matter. There appears to be a tension between prosecutors’ desire to get the trial over with quickly, thus allowing them to disavow any political effect, and giving the defendant a fair trial. Prosecutors wanted to start the trial on Dec. 11, but the Trump team made a persuasive case that, given the issues and massive amounts of documents involved, that was too soon. On the other hand, the Trump team did not make a persuasive case that, as a legal matter, the case should be delayed until after the Nov. 5, 2024, presidential election. The judge will have to decide what to do.
In any event, the trial will likely take place during critical moments in the 2024 campaign. If the judge had approved the Justice Department’s Dec. 11 request, the trial would have gone on in the weeks leading up to the Iowa caucuses and perhaps on caucuses day itself. Now, with the trial coming at some unspecified later date, it could happen during the primary season or during the Republican convention. Who knows?
As for the expected indictment concerning Jan. 6 and the 2020 election — that’s another question mark. The charges, if they come, will arrive in a highly political context for a trial that will certainly take place in the election year. There will be “election year sensitivities” galore.
So what to do? Trump’s adversaries will say that if he did not want to be on trial in a year in which he was running for president, then he shouldn’t have committed all those crimes. In the meme world, it’s known as FAFO: Donald Trump f***ed around, and now he’s finding out.
A more serious way of looking at it is to ask whether each case should have been, or should be, brought. The answer is easy with the Manhattan indictment. It should never have been brought. The documents case is more difficult. It appears beyond dispute that Trump mishandled classified information. But it’s also beyond dispute that as president, he had a special status as far as classified information was concerned, and that status did not end entirely when he became a former president. So the question is whether 37 felony charges, as opposed to, say, a lawsuit, is the proper way to deal with Trump’s actions.
The other two indictments, Smith’s second indictment and the one from Willis, are still prospective events. But as a general matter, they certainly seem redundant. And given their timing, each will be particularly vulnerable to the charge that they are political actions by prosecutors who are bound and determined to charge Trump and who, in their zeal, ignored alternative readings of the case, like this: It is entirely reasonable to believe that Trump abused some election laws and that those laws should be fixed to ensure that no future president does it again — but also that Trump’s actions were not crimes.
Of course, the chance of the Biden Justice Department or the Manhattan district attorney or the Fulton County district attorney accepting such an argument is zero. So as the campaign builds, and as the election year of 2024 begins, so too will begin a year of trials to go alongside the presidential campaign.
Just as a side matter, all of the prosecutors are setting a terrible precedent for future prosecutions of former presidents.
Some Democrats hoped repeated indictments would convince Trump’s Republican supporters to abandon him. So far, that has not happened. The early indictments actually increased Trump’s support, and new ones might increase it even further. If Democrats wanted a barrage of indictments to take Trump out, so far, they have been disappointed.
Another way of approaching the situation would be to place faith in the political system. First, Trump might not end up being the Republican presidential nominee. Right now, he has a huge lead, but you never can tell what will happen in six months. And second, even if Trump is the nominee, with his history it is very unlikely that he can win a general election. Not impossible — given the Democrats’ choice of an enfeebled president who is asking to serve until age 86, nothing can be ruled out — but it is very unlikely the election will return Trump to the White House. Why not trust the voters to make the decision?
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