If Trump Wins in 2024, Any Indictments Against Him Will Never Be Tried

No trials of current or potential indictments of ex-President Donald Trump are likely to begin before the start of the Republican primaries next February. Moreover, the New York indictment, which has a March 2024 trial date, is the only case with a realistic chance of being tried before the 2024 general election. If Trump wins the general election, he will be immune from trial and likely be pardoned.

If Trump becomes the Republican nominee, for him to be tried before the general election, the trial would have to be concluded before the end of the Republican convention in July 2024. This is because, upon Trump’s nomination, a judge is likely to stay any trial until after the election. A judge would see such a stay as a reasonable way to give effect to the presumption of innocence and the decision of a major party to make Trump their nominee.    

In Georgia, where Trump is under investigation for pushing to overturn 2020 election results, the Fulton County District Attorney has suggested that a potential indictment will not be handed down until August, if one comes. She apparently contemplates a complex multi-defendant racketeering case. Trump no doubt will seek to move the case to federal court, claiming that he acted in an official capacity. If the charges come about, the chance of a complex racketeering trial being completed by July 2024 is remote.

A federal indictment has been filed accusing Trump of crimes in keeping classified documents at Mar-a-Lago. Here, too, completion of a trial by July 2024 is highly unlikely. The government has advised that the trial will take 21 days, which means the trial would have to commence by a year from now. Trump will make pre-trial motions and his lawyers will need to get security clearances to review classified documents. Even if the court pushes for expedition, something it may be reluctant to do, the case likely will not be trial-ready in one year.  

A potential indictment related to the Jan. 6, 2021, events at the Capitol would be tried in Washington, where the average time between indictment and trial is 18 months. (This number includes cases in which a criminal defendant has pleaded guilty.) The time consumed to be ready for such a trial, if it comes about, would be significantly above average. No indictment has been filed. There is no chance a trial could be concluded by mid-July 2024. 

Thus, in the absence of trials before the general election, the impact on voter behavior of any cases against Trump must come from the indictments alone. 

The indictment in New York so far has shown little signs of affecting voter behavior. A trial and conviction would raise more concretely the prospect that, upon exhaustion of appeals, candidate Trump, if elected, might at some point during his term be at risk of being sent to prison. However, it is unlikely that a New York court would require a U.S. president to be incarcerated for the nonviolent business records offense at issue in this case. 

A Georgia indictment is also unlikely to change voter behavior. This is largely because the reported “smoking gun” in that case — Trump’s calls asking Georgia officials to “find” the votes he needed to win — are already a matter of public record and baked-in to public opinion. And again, the chance that Trump, if elected, would be incarcerated during his term is small. The Republican governor of Georgia likely would pardon him so that he might serve as president in accordance with the popular will. 

The current and possible federal indictments are more likely to have a greater impact on voter behavior and to encourage swing primary voters to conclude that Trump is unelectable. The Mar-a-Lago indictment is well crafted and conveys a certainty of guilt that did not exist before it was issued.  A Jan. 6-related indictment could have a similar effect, depending on the results of the special counsel’s investigation. 

Trump’s expected efforts to delay trial for the indictments would create a dynamic that makes the election a referendum on whether Trump should be tried and sent to prison. If elected, Trump would have the power to quash the indictments by pardoning himself. Short of this, a court could give effect to the principle that a sitting president should be immune from trial and pardon himself on the last day of his term.

Far and away the greatest potential impact on voter behavior would come from a federal indictment related to the Jan. 6 violence in an alleged attempt to “stop the steal.” Unlike the other cases, what happened that day is not a white-collar crime. It also involves more than a mere attempt or risk creation but actual damage arising from violence and the attempted prevention of a peaceful transition of power. 

If the special counsel’s investigation confirms evidence of Trump’s complicity, he should not withhold asking the grand jury to indict — even though there is no chance that such a case could be tried before the election. Voters should not be deprived of the ability to vote on whether Trump should be held accountable. 

Evan Davis, a New York litigator, served as a counsel and leader of the Watergate and Cover-up Task Force in the President Nixon Impeachment Inquiry and as president of the New York City Bar Association.