Any expectation that former President Donald Trump will stand trial on federal criminal charges before the 2024 presidential primary season may have been scuttled by a possible tactical misstep from special counsel Jack Smith.
The New York Times reported that Smith’s team has been vigorously investigating Trump’s multi-million fundraising, which was ostensibly intended to finance efforts to uncover fraud in the 2020 election, even when Trump and his team knew claims of fraud were false.
Smith may have doomed his chances of holding Trump accountable before voters head to the polls.
If accurate, Smith’s prosecutorial instinct to pursue his investigation wherever the facts lead — while ordinarily laudable — could become a recipe for delay in this case. By failing to keep his eye on the calendar, Smith may have doomed his chances of holding Trump accountable before voters head to the polls for the 2024 presidential election.
The Times article, citing three people familiar with the matter, reported that federal prosecutors “led by Smith” have been “drilling down” on whether Trump and his aides committed wire fraud by raising nearly $250 million to challenge President Joe Biden’s election.
Some knowledgeable commentators have cheered Smith for expanding the scope of his investigation. But I fear that this view overlooks the inevitable costly delay caused by Smith’s new direction.
Trump is under investigation by multiple prosecutors, and has already been indicted by the Manhattan district attorney on multiple counts of falsifying business records. But Smith’s federal investigations should be of primary importance, as only those probes can comprehensively redress the illegal efforts to undermine our democracy on Jan. 6 and the national security risk of retaining classified documents at Mar-a-Lago.
The diversion of time to investigate financial fraud is not inconsequential if it leads to further delays in the ultimate decision of whether Trump should be indicted.
And there is another downside.
By diverting prosecutorial resources and focus, Smith is also exceeding the scope of the authority vested in him by Attorney General Merrick Garland. No matter how powerful a potential fraud case may ultimately be, this inquiry does not fit within Smith’s assignment to investigate interference with the transfer of power, the Jan. 6 insurrection or the alleged mishandling of classified material and presidential records.
The scope of Smith’s mission was already quite sweeping. And yet, Smith was not assigned to investigate potential wire fraud in post-election fundraising.
Even adhering to the parameters of his actual appointment, the scale of potential misconduct is breathtaking if he must truly determine whether “any person or entity” sought to interfere with the transfer of power. The potential suspects for just this piece of Smith’s investigation range from Justice Department officials in Trump’s administration to his White House staff to fake electors in multiple states to political operatives.
To be fair, seemingly little had been accomplished by the Justice Department before Smith’s appointment last November. Since his appointment, Smith has issued a torrent of subpoenas.
He has vigorously litigated to force witnesses to testify in the grand jury by obtaining court rulings denying claims of executive and attorney-client privilege. The grand jury testimony of former Vice President Mike Pence, Trump’s lawyer Evan Corcoran and Mar-a-Lago employees demonstrates Smith’s progress.
If Trump were not an active — and seemingly leading — candidate for the Republican presidential nomination, Smith’s delay might be inconsequential. But he is seeking the Republican nomination. Even if Trump was to be indicted this month in D.C. federal court for his role in seeking to overturn Biden’s election, his trial might not start until after Election Day in November 2024. Any further delays in the process only increases that risk. According to federal statistics as of Dec. 31, 2022, the median time it takes for a criminal felony to move from indictment to disposition in the U.S. District Court in Washington, D.C., is nearly 18 months. But that figure understates the time frame in which a case as complicated as Trump’s would be decided. (The statistics also include plea deals.) ` Moreover, the average number of defendants per case in this sample is 1.3 persons. If Smith indicts Trump along with many (or any) potential co-conspirators, the complexity of the trial will increase. And so will the delays. Trump’s history of interlocutory appeals and stonewalling certainly suggests that an array of delaying tactics will be pursued. A likely court venue for a criminal prosecution regarding the Mar-a-Lago documents would be South Florida. Federal judicial statistics as of Dec. 31, 2022, reflect that a criminal felony case filed in the U.S. District Court for the Southern District of Florida, on average, is resolved in 9.5 months. Again, that statistic includes all dispositions, including criminal defendants who plead guilty. And this doesn’t even take into account Trump’s indictment in New York, and another potential indictment in Georgia. With so many venues and lawyers, scheduling conflicts will be inevitable, further delaying any federal trial. Trump’s history of interlocutory appeals and stonewalling certainly suggests that an array of delaying tactics will be pursued. This is particularly true if Trump’s legal team believes that he can win the presidency and thereby insulate himself from prosecution while in office. For the sake of the country, Smith needs to wrap up his investigation and make his recommendation to the attorney general as soon as possible. With each passing day the risk grows that any criminal charges against Trump will be pending in November 2024. If that happens, American voters will serve as Trump’s jury.
Michael Conway
Michael Conway was counsel for the House Judiciary Committee in the impeachment inquiry of President Richard Nixon in 1974. In that role, he assisted in drafting the committee's final report to the House in support of the three articles of impeachment adopted by the committee. Conway is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago. 
