Two high-profile judges overseeing a pair of former President Trump’s criminal cases are taking dueling approaches on how to handle their roles ahead of the 2024 presidential election.
U.S. District Judge Tanya Chutkan, who oversees Trump’s federal election subversion prosecution in the nation’s capital, has remained steadfast that she won’t consider the election.
“This court is not concerned with the electoral schedule,” Chutkan proclaimed at a hearing last week, adding it’s “nothing I’m going to consider.”
But the next day, New York Supreme Court acting Justice Juan Merchan, who oversaw Trump’s hush money trial, agreed to delay the sentencing until after November’s election, explicitly tying it to the contest.
The judge wrote that his decision was intended “to avoid any appearance — however unwarranted — that the proceeding has been affected by or seeks to affect the approaching Presidential election in which the Defendant is a candidate.”
Whether the GOP nominee’s bid to return to the White House should take precedence over the timelines of his criminal cases has always loomed over the historic prosecutions.
Trump’s attorneys have said the cases’ steady schedules hamper the former president’s campaign, a violation of his and voters’ rights. Prosecutors, however, contend that slow walking the cases is just as detrimental.
The striking contrast between the two judges shows how they are grappling with decisions involving the Republican nominee for the White House also being a defendant in their courtrooms as a high-stakes, deadlocked election looms.
“Judge Merchan is overseeing a case where the only thing left is sentencing, and there are questions about sentencing a presidential candidate eight weeks before a presidential election,” said Loyola Marymount University law professor Jessica Levinson. “For Judge Chutkan, she’s overseeing a case that’s in a completely different place.”
Trump has long employed delay as a legal strategy to defend against his criminal prosecutions. If he retakes the White House in this year’s elections, legal experts expect he will be able to grind all four of his indictments to a halt.
“Donald Trump has already postponed accountability for conduct of which a jury of his peers found him guilty 34 times that began in 2015, almost 10 years ago,” said Norm Eisen, counsel for Democrats in Trump’s first impeachment.
“Adding additional delays here has dishonored the service of those jurors and makes a mockery of the justice system by demonstrating that it can be manipulated by the wealthy and the powerful when ordinary people, particularly the typical defendant, can expect no such special treatment,” Eisen said.
With less than two months until Election Day, the strategy has borne fruit.
Three of Trump’s four criminal prosecutions are tied up in pretrial issues until well after the election.
In the only case that reached trial, Trump’s hush money prosecution, it had seemed the former president was destined for a preelection sentencing. Moments after the jury handed up its guilty verdict, Trump’s lawyers requested the judge announce Trump’s punishment in July.
Things soon changed. Less than two weeks prior to Trump’s original sentencing, the Supreme Court carved out broad immunity for former presidents’ official conduct, casting doubt as to whether the conviction can stand.
Merchan quickly punted the sentencing — and his ruling on immunity — to September, still keeping it before the election.
But soon enough, Trump demanded another delay. After sitting on the request for much longer, the judge ultimately acquiesced and moved it to Nov. 26.
“The Court is a fair, impartial, and apolitical institution,” Merchan wrote in his ruling. “Adjourning decision on the motion and sentencing, if such is required, should dispel any suggestion that the Court will have issued any decision or imposed sentence either to give an advantage to, or to create a disadvantage for, any political party and for any candidate for any office.”
Prosecutors in the case did not oppose either delay, but some legal observers have critiqued Merchan for tying his reasoning to the election.
“I think Trump may have just worn him down a little bit,” said Eisen, who attended the trial.
“Whatever the explanation, he’s a good judge. He’s a decent person. He tries to do the right thing, and I know he made this decision in good faith. But it’s a bad decision,” Eisen added.
Levinson contended Merchan has been lodged between the “proverbial rock and a hard place” with the discretion as Trump’s judge to determine whether moving forward with his sentencing would be in the interest of justice.
“He decided that delaying the sentencing until after the election was in the interest of justice,” she said. “There are competing issues on both sides of the scale, and he weighed them in a certain direction.”
Chutkan, meanwhile, has made discussion of the election taboo in her courtroom in Washington.
At the hearing last week, she jumped at the first hint of hidden campaign subtext, swiveling her chair and letting out an “oh” when she believed Trump’s lawyer began creeping up to the subject.
Chutkan insisted the election was “not going to be a factor” in her decisionmaking about Trump’s case.
“I am definitely not getting drawn into an election,” she said.
But the judge might not have a choice.
If Trump wins the White House in November, it’s expected that his Justice Department would move to dismiss his four-count indictment in the election subversion case. If he loses, his pretrial schedule will likely proceed as planned.
The uncertainty made setting a trial date an “exercise in futility,” Chutkan said, and both parties agreed.
“It has to kind of go both ways,” Levinson said. “If you’re treating this criminal defendant the same as you’d treat any criminal defendant, then it doesn’t matter that this happens to be one of the two people in the entire United States who might, in a few months, have the power to tell an attorney general to stop a criminal case.”