Trump Attorney, Judge, Contemplate Trial Schedule in Event of Trump Nomination or Presidency

The judge asked, ‘What would be the state’s response that having this trial on Election Day is election interference?’
Trump Attorney, Judge, Contemplate Trial Schedule in Event of Trump Nomination or Presidency
Judge Scott McAfee speaks during a hearing in the 2020 Georgia election interference case at the Fulton County Courthouse in Atlanta on Dec. 1, 2023. (John David Mercer- Pool/Getty Images)
Catherine Yang

Former President Donald Trump’s several criminal indictments and likely nomination were proverbial elephants in the room during a lengthy motions hearing in Fulton County, during which Fulton County Superior Court Judge Scott McAfee set new motions deadlines for two former federal officials who have been trying to remove their Georgia election case out of state court before finally addressing the presidential race.

Harry MacDougald, counsel for former Department of Justice official Jeffrey Clark, said his client is litigating in four forums. James Durham, counsel for former chief-of-staff Mark Meadows, said in addition to appealing the removal of his case to federal court, he is involved in several cases against former President Donald Trump. In light of this, the judge allowed the motions deadline to be slightly postponed for the two defendants only, to Feb. 1, 2024.

In August, Mr. Clark and Mr. Meadows were two of 18 indicted alongside President Trump for their actions to challenge the 2020 election results, which state prosecutors allege constituted a criminal conspiracy enterprise.

State prosecutors originally asked for a March 4, 2024, trial date, but a federal case of a similar nature—alleging President Trump interfered with the 2020 elections—is set to go to trial that day.

Fulton County District Attorney Fani Willis, prosecuting the case, has since asked for an Aug. 5, 2024, trial date.

“That wouldn’t be unrealistic in a normal, multi-defendant case, even with a lot of pretrial litigation that wouldn’t be unrealistic,” Judge McAfee said. “But obviously there are a lot of unique variables here.”

Prosecutors sought to lock in an August trial date, but the judge added the court may not be able to commit to an August trial date even six months in advance.

Running for President

Steve Sadow, counsel for President Trump in the Georgia case, explained that after the criminal trial in March, his client has another federal criminal trial in the Southern District of Florida in May, and a New York criminal case awaiting a new trial date that is meant to be set after the Florida case.

He said he didn’t see “any way” this case could possibly go to trial in August, when President Trump would also “possibly be running for election,” a “somewhat pressing” matter.

“The preference is not to be on trial while he is running,” he said.

He added that President Trump is so far ahead in the polls that it is unlikely that he will not become the Republican nominee, and that whether he is or not could change their scheduling concerns.

“But can you imagine the notion of the Republican nominee for president not being able to campaign for the presidency because he is, in some form or fashion, in a courtroom defending himself?” Mr. Sadow said.

“With all due respect to everybody ... that would be the most effective election interference,” he added. “I don’t think anybody wants to be in that position.”

“I would hope that the state would understand that if the Republicans believe he should be the nominee, that he should be given the same fair chance to campaign nationally as the Democratic nominee, which of course at this time appears to be the President.”

He asked Judge McAfee to put off setting a trial date for the time being, and several defense attorneys asked the judge whether the case would be severed from the other 15 defendants.

The judge could not commit to severing cases at the time but repeated that it was possible.

State attorneys pushed back on the implication that they would be interfering with a presidential election.

“The DA has made it clear that she has no interest in interfering or getting involved with this presidential election,” said attorney Nathan Wade. “Her sole focus is to move the case forward, and not with respect to anything that’s going on outside of Fulton County, Georgia.”

The judge asked, “What would be the state’s response that having this trial on Election Day is election interference?”

“This trial does not constitute election interference,” Mr. Wade repeated.

After contemplating a hypothetical in which President Trump is the Republican party’s nominee, the judge asked Mr. Sadow what would happen if he also won the general election.

“Mr. Sadow, if your client does win the election in 2024, could he even be tried in 2025?” Judge McAfee asked.

“The answer to that is, I believe, that under the Supremacy Clause and his duties as President of the United States, this trial would not take place at all until after he left his term of office,” Mr. Sadow said. The Supremacy Clause, in the U.S. Constitution, puts federal law before state and local laws.

A potential 2028 trial date did not seem welcome news to most.

Legal counsel for John Eastman, who did not argue during the motions hearing, pointed out that “a number of defendants are not running for the presidency of the United States.”

The judge could not commit to severing the cases, which several defendants preferred, and declined to set a deadline for severance motions.