Donald Trump Faces Three Grim Scenarios for Jack Smith Trial

Donald Trump could still face a federal trial over his alleged criminal attempts to overturn the 2020 election amid his 2024 campaign, according to legal experts.

On Tuesday, a D.C. appellate court rejected Trump's claim that he is immune from prosecution under Special Counsel Jack Smith's investigation into the events that led up to the January 6, 2021, riot at the U.S. Capitol as the allegations relate to his time in office.

Trump has already said he will appeal the decision to the U.S. Supreme Court, which means the trial in which Trump is accused of four offenses, which has already been delayed from its originally March 4 date, could be put back even further pending the court's decision.

Trump has long been thought to want to delay the start of the trial until after the 2024 election, as there is a possibility he could order the case be dropped if he wins the race once he enters the White House.

The appeals court is giving Trump until February 12 to file an emergency stay request with the Supreme Court, which would again put the case on hold. Trump would then need to file a petition to the SCOTUS asking it to reconsider the appeals court's decision.

Writing for the JustSecurity website, former White House special counsel Norm Eisen, Matthew Seligman, a fellow at the Constitutional Law Center at Stanford Law School, and Joshua Kolb, a law clerk in the U.S. Senate Judiciary Committee, laid out the possibilities for the timeline in Trump's federal 2020 election case as the immunity arguments look set to continue.

The lawyers said their analysis is based on the assumption that Trump will lose any immunity appeal in the court "given the weaknesses of his argument" and that any trial would last between eight to 12 weeks

Eisen, Seligman and Kolb suggest Trump's federal trial could end in late August or early September if the Supreme Court denies his request to review the decision from the appeals court, known as a cert petition, or sometime in October if the Supreme Court grants the cert petition.

"We caution however that court timelines are unpredictable, and that these dates simply represent probabilities—not certainties," the lawyers wrote.

Denial of cert

The worst scenario for Trump is that the Supreme Court outright rejects his appeal to take up the case.

Former Pentagon special counsel Ryan Goodman said on CNN that the Supreme Court could make a decision by February 29.

"At that point, you got two different tracks. Track one is the court decides not to take the case. They just deny cert," Goodman said. "It's not worth it, this is a solid decision...so we just leave be.

"If that's the case, then we're on a short track. It goes right back to the trial court. June 1 is a very good start date to anticipate, and then the trial wraps up by September 1."

Treat stay as cert petition

In their analysis for JustSecurity, Eisen, Seligman and Kolb said that if Trump does appeal to the Supreme Court, it could treat his emergency application for a stay as a cert petition and grant it immediately.

In this timeline, the Supreme Court could hear oral arguments between March 5 and 15, before taking at least a month to reach a decision.

If the Supreme Court rules against Trump, the case would then return immediately to the district court, which would then restart pretrial proceedings.

"With another three months of those pretrial proceedings to go, trial would begin approximately between July 5 and July 15," the lawyers wrote, putting the conclusion of the trial somewhere between October 5 and 15.

Grant stay with 10-day limits

Based on its previous ruling, the JustSecurity analysis predicts if the Supreme Court grants Trump's emergency application for a stay, it will limit the stay to 10 days, at which point Trump would need to file a cert petition.

"The Special Counsel would file its responsive brief immediately, and Trump would then have perhaps a few more days to file a reply," the lawyers wrote. "Thus, within two weeks from the filing of the cert petition, that process should be completed."

Under this scenario, oral arguments could be heard between March 18 and 27, a decision on the immunity appeal in late April, with the trial beginning in late July and concluding by between October 19 and 30.

"If the Supreme Court follows the timelines we lay out above—which we believe are well-supported by its prior practices—Trump's trial would conclude no later than just before Election Day on the longer timeline and by September 1 on the shorter timeline if there is a denial of cert," the three lawyers added.