The historic indictment of former President Donald Trump has thrust the legal system into murky waters, raising the prospect of a leading presidential candidate campaigning around the country while also facing trial for criminal charges.
But legal experts caution that it could take years for Trump’s criminal case to work its way through the court system, and the potential for a litany of hard-hitting motions and delay tactics may well push the trial until after the 2024 presidential election.
“I cannot imagine that Trump would be convicted, and sent to jail, before the 2024 election season is over,” says Richard Hasen, an election law professor at UCLA.
The unprecedented nature of a former President facing criminal charges carries a wide net of unknowns, but if one thing is clear from Trump’s extensive court record, it’s that he will likely seek to delay and prolong the proceedings as long as possible. In dozens of legal matters going back decades, Trump’s legal team has filed an exhaustive list of motions and appeals designed to stretch the clock.
The specific charge or charges against Trump have not been made public as the indictment remains under seal, but one of Trump’s lawyers told TIME that the former President is expected to turn himself in on Tuesday to be arraigned in State Supreme Court in Manhattan.
As a practical matter, it could take months just for the trial to begin even if both sides were quick to proceed, as a jury has to be selected and vetted.
But the particulars of the case are likely to be ripe for motions from Trump’s legal team that, even if unsuccessful, would drag out the proceedings. The case revolves around Trump’s role in hush-money payments made to porn star Stormy Daniels just before the 2016 elections to cover up an alleged affair. Trump’s lawyers could try to move the case to federal court given the constitutional implications, arguing that at least some of the payments took place while Trump was President and should not be decided by a state court. He also could seek to move the trial to a different courthouse in New York state.
In order to charge Trump with a felony, legal experts say that New York prosecutors have likely combined a falsifying business records charge with a violation of state election law, even though the case involves a federal election. Kim Wehle, a former U.S. attorney and now law professor at the University of Baltimore, says the former President could try to have the indictment dismissed or reduced to a misdemeanor charge. He could even argue that prosecutors waited too long. In New York, the statute of limitations for most felonies is five years, but there are some exceptions to that deadline, including if the person being charged was living out of state, as Trump was.
All of these pre-trial motions could take months to resolve, raising the prospect that Trump will spend most—if not all—of his campaign season embroiled in legal wrangling, with a trial still ahead of him.
“This case could easily go beyond the 2024 election given all the complexities,” Wehle says. “Trump’s lawyers don’t have a problem filing frivolous motions, but there are a lot of legitimate, good-faith arguments to make on Trump’s behalf, without even seeing the indictment.”
For Trump, every single delay he can muster out of the judicial system helps. He knows that if the trial is scheduled for after Nov. 5, 2024, and he wins the presidential election, the case wouldn’t keep him from returning to the White House. Some legal experts believe Trump will reach for every possible opportunity to delay the proceedings, making a pre-election criminal trial nearly impossible.
Yet the delay tactics at Trump’s disposal are more limited than when he was President, notes Neal Katyal, the former Acting Solicitor General and a current constitutional law professor at Georgetown University. While in the White House, Trump was able to claim that sitting Presidents are immune to federal prosecution and can invoke executive privilege to hide information.
“Because this is a State not Federal charge, and from before Trump was President, all the nonsense delay tactics Trump has used in the past won’t work,” Katyal wrote on Twitter. “The trial will happen.”
Most recently, a criminal tax case filed against the Trump Organization in the same court in 2021 took about 15 months to get to trial. A jury ultimately convicted two Trump companies on all 17 felony charges last December.
Yet some cases involving high-profile defendants can take even longer to adjudicate. In Texas, Ken Paxton, the state’s attorney general, was indicted on felony securities fraud charges in 2015; more than seven years later, it still hasn’t gone to trial as the case bounces around trial courts.
Wehle, who worked on the Whitewater investigation into former President Bill Clinton as an associate independent counsel, says there are a number of logistical reasons why trials with vast implications, particularly those involving political figures, tend to drag on for lengthy periods. In 1996, when President Bill Clinton was subpoenaed by a grand jury as a defense witness in a financial fraud case, it took more than two months of back-and-forth negotiations to secure his testimony, and there were constraints on the questions asked. “There are going to be negotiations to try to protect the integrity of the presidency—some sensitivity to the fact that Trump is a former president,” she says.
A longer trial that runs well into the 2024 presidential campaign could also benefit Trump as a fundraising tool, capturing the outrage that has circulated within his base who believe the former president is being politically persecuted. “It’s simultaneously embarrassing, but also makes him something of a martyr,” says Saikrishna Prakash, a law professor at the University of Virginia who formerly clerked for Justice Clarence Thomas of the U.S. Supreme Court.
Although the charges remain unknown, Trump’s legal strategy will likely include attacks against the credibility of Michael Cohen, Trump’s former lawyer, by citing his criminal record. Cohen served prison time after pleading guilty in 2018 to federal charges in a related case involving his payments to Daniels and model Karen McDougal. Cohen was reimbursed for the payments by Trump, whose company logged the reimbursements as “legal expenses.”
Trump could be facing a maximum sentence of four years if convicted of a low-level felony, though prison time would not be mandatory and it would not bar him from running for President.