“Does it eventually get so late in the election-campaign calendar that it would be too unseemly to start trial? I would hope so,” former assistant U.S. Attorney for the Southern District of New York Andrew McCarthy, a Fox News contributor, wrote in an op-ed for National Review on Saturday.
“The administration of justice in criminal cases is an important national priority, but it’s not the only one – or, necessarily, the highest one.
How much intrusion on politics by the justice system should Americans tolerate – particularly under circumstances in which the intrusion is being orchestrated by the administration of the incumbent president against his campaign opponent?”
McCarthy’s op-ed was in response to a federal judge suspending Trump’s trial involving Special Counsel Jack Smith’s 2020 election interference investigation indefinitely last week after it was set to begin on March 4.
The move comes after Trump’s legal team filed an appeal to argue that the former president is granted immunity from prosecution for actions while in office.
“A president of the United States must have full immunity, without which it would be impossible for him/her to properly function,” Trump said last week on Truth Social in all caps. “Any mistake, even if well intended, would be met with almost certain indictment by the opposing party at term end. Even events that ‘cross the line’ must fall under total immunity, or it will be years of trauma trying to determine good from bad.”
An appeals court is reviewing Trump’s argument, tying the presiding judge’s hands from proceeding with the case. Trump filed an appeal in December, with a three-judge panel hearing arguments last month.
No opinion has yet been issued, and the case could be sent to the full circuit court or Supreme Court for review, which would add additional time to proceedings.
McCarthy has been arguing that Trump’s trial strategy is “delay, delay, delay,” adding that after the postponed trial, a midsummer trial date for the D.C. case is “ambitious” and will likely be closer to Election day.
“The election-interference prosecution of Donald Trump, the former president and likely Republican presidential nominee, by the Justice Department of Joe Biden, the incumbent president and Trump’s likely Democratic opponent, is the most politically charged in American history,” McCarthy wrote in a January column for National Review.
He argued Saturday in a column that the delay of the trial did not come as a shock, and only solidified what had long been anticipated due to Trump’s appeal.
In addition to the appeal potentially being heard by the full 11-member Circuit Court or Supreme Court, pre-trial work could hold up the trial even longer, making a midsummer trial date “optimistic.”
“Why? Because there is a lot of pre-trial work, including administrative detail, that must be attended to for a case to get to trial. As I elaborated in my [January column] about Trump’s delay strategy, the pre-trial process includes discovery, motions to dismiss the case or suppress evidence, hearings on motions, and so on. Whenever jurisdiction is finally returned to Judge Chutkan, all of that will have to crank up again – it takes a long time to get through, and it’s not like this is the only case on Her Honor’s docket,” he wrote.
McCarthy speculated whether the courts would allow the anticipated GOP nominee to languish in courtrooms for weeks as Election Day comes down to the wire.
“Defendants have to be present in court for the entirety of criminal trials. Could we really have the Republican nominee stuck in a courtroom from, say, August through October? I’m sure that would be fine with the Biden Justice Department’s special counsel. The question may be whether the court will go along,” McCarthy concluded. The former assistant U.S. attorney told Fox Digital that Jack Smith “will push to go to trial in the Washington case no matter how late in the election campaign calendar it gets,” but he noted that Smith is not in the driver’s seat when it comes to determining schedules.
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