Prosecutors Have Another Foe in Cases Against Trump: Time

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(Bloomberg) -- Nothing prevents the Justice Department or the Atlanta-based district attorney from charging Donald Trump if he’s indicted in Manhattan. But a bottleneck would make it harder for each case to be tried before the 2024 election cycle is in full swing.

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If cases stack up against the former president, judges and lawyers will have to navigate overlapping court timelines along with the escalating demands of Trump’s reelection campaign.

“Even if he had a million lawyers, he still needs to be available to assist in his own defense,” said Sarah Krissoff, a former federal prosecutor in New York who is now a partner at Day Pitney. “There’s got to be some deference to a defense counsel’s judgment that they can’t handle X and Y right now.”

Multiple prosecutions that kick off with an indictment brought by New York District Attorney Alvin Bragg, a Democrat, also will fuel Trump’s rhetoric that he’s the victim of a political “witch hunt.” The Manhattan case involves different allegations, witnesses, and evidence than the alleged criminal activity under investigation by the Justice Department and state prosecutors in Georgia, but Trump has presented all of the probes collectively as proof of bias.

“It makes it a little more difficult perhaps for DOJ to differentiate itself” to the public if they press charges later, Krissoff said.

First Mover

Bragg’s office has focused on hush-money payments made to a porn star during Trump’s 2016 campaign. Possible charges being considered in New York — such as falsifying business records — are less serious than what Trump or his allies could face elsewhere. The Justice Department’s Special Counsel Jack Smith is looking into 2020 election interference and whether classified information was mishandled after Trump left the White House. Fulton County District Attorney Fani Willis is exploring whether Trump and his allies violated Georgia’s election laws, as well as possible conspiracy and racketeering offenses.

Being first to indict Trump would give Bragg a head start, but doesn’t guarantee his case reaches trial first. In New York state court felony cases typically have to be tried within six months of indictment. The timeline could be pushed back and another prosecution may advance if Bragg’s office runs into problems turning over evidence to Trump’s team, for instance, or if there are thorny legal questions that the judge has to settle.

Former prosecutors expect Trump’s defense attorneys to look for any opportunity to argue for later deadlines and trial dates regardless of how many criminal cases he ends up facing. Even though Trump is a party in numerous pending civil cases, judges are likely to be sensitive to his lawyers’ requests for additional time if he’s the subject of a criminal prosecution.

“Delay helps the defendant more than it helps the prosecutor. Why? Because memories fade, witnesses get annoyed,” said Catherine Christian, a former veteran of the Manhattan district attorney’s office. “So delay, delay, delay if you’re a defendant.”

Trump has different defense teams handling the criminal investigations out of Manhattan, Washington and Fulton County. Trump spokesperson Steven Cheung did not return a request for comment.

Bragg hasn’t confirmed if his office will, in fact, press charges against Trump and if so, when that will happen. Trump suggested an imminent arrest a week ago in a social media post, citing “leaks” to the press, but that didn’t happen.

As the first prosecutor to criminally charge a former president, Bragg’s place in history would be secured and he’s likely to attract global media coverage. It also could take some pressure off Justice Department officials and Smith’s team and the Fulton County district attorney’s office as they decide their next steps.

“They may be breathing a sigh of relief because the focus is on Manhattan,” Christian said, a partner at Liston Abramson.

A Justice Department spokesperson declined to comment. A representative of Willis’s office did not return a request for comment.

Crime and Politics

The next presidential election isn’t until Nov. 5, 2024, but the department is sensitive to the approaching campaign season. Attorney General Merrick Garland cited Trump’s candidacy and the likelihood of President Joe Biden’s reelection bid in appointing Smith to set up an independent office.

Political considerations aren’t supposed to factor into charging decisions. The Justice Department has a practice of avoiding investigative steps or bringing charges in the immediate lead-up to an election, and the department’s manual for attorneys prohibits timing actions in order to affect an election or to help or hurt a particular candidate.

There’s no policy that would require prosecutors to accommodate Trump’s campaigning once charges are filed, but any Trump prosecution would be “uncharted territory” for the Justice Department, said Franklin Monsour, a former federal prosecutor in Florida and partner at Orrick Herrington & Sutcliffe. Judges won’t want to prejudice Trump by cutting short his time to prepare, but the looming election could cut both ways if his lawyers repeatedly ask for more time.

“I could see judges thinking these cases should be resolved before people go to the polls and make their decisions,” he said.

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