Donald Trump’s arraignment, scheduled for Tuesday in New York City, is expected to last less than an hour. But it could take years for his case to reach a conclusion as the litigious former president mounts a defense, extending the case beyond the 2024 U.S. presidential election in which he is running as a candidate.
Trump became the first former president to face criminal charges when a grand jury in New York voted last week to indict him in connection with a hush money payment to porn actor Stormy Daniels in 2016.
The indictment, which remains under seal, is expected to be made public after Trump’s court appearance.
Lance Fletcher, a New York City criminal defense attorney and former prosecutor in the Manhattan District Attorney’s office, said a typical felony can take a year to get to trial in New York.
“If it’s a high-profile case or [involves] very serious charges, this back and forth during the pretrial could easily take two years,” Fletcher said in an interview with VOA. “So, I wouldn’t be surprised if this took more like two years.”
At Trump’s arraignment, or initial court appearance, the judge assigned to the case, Juan Merchan, will read the charges against him, and as is customary for defendants, Trump will enter a plea of not guilty.
The next legal steps include a series of pre-trial proceedings, lasting months or even years, followed by jury selection and trial.
Though more than 90% of felony cases in New York, as in the rest of the country, end with a plea bargain, Trump’s lawyer has said there is “zero” chance the former president will entertain that option.
Under New York’s speedy trial laws, a felony trial must begin within six months of an arraignment. But the deadline is almost always missed as both parties ask for additional time to prepare.
Trump has denied any wrongdoing in the case, and his recently expanded team of lawyers has vowed to fight the charges tooth and nail even before they’re presented to a jury.
In recent days, Trump lawyer Joe Tacopina has said he’ll try to have the charges dismissed based on the novel legal theory upon which the case is apparently built. The judge is unlikely to oblige, experts say.
Even if the judge does not dismiss the charges, Trump has other ways to fight and potentially prolong the case. One is filing pre-trial motions, which are requests to the court to resolve certain issues before the trial begins.
In criminal cases, there are several common pre-trial motions: motions to dismiss the charges for lack of sufficient evidence; motions to suppress evidence that was illegally or improperly obtained; and motions to change the venue of the trial due to excessive publicity.
In Trump’s case, legal experts say, his defense team is expected to raise all of those issues and then some.
Among other motions, Trump’s defense lawyers will likely challenge his indictment on the grounds of New York’s statute of limitations, said Cheryl Bader, a clinical associate professor of law at Fordham University School of Law.
A statute of limitations is a time limit within which a crime can be prosecuted. In New York, the statute of limitations is two years for misdemeanors and five years for most felonies.
Given that the hush money payment was made nearly seven years ago, defense lawyers could argue that Trump can’t be legally charged with a crime related to the alleged payoff.
But the law provides for exceptions and given that New York prosecutors have “gone this far with it, I’d be shocked if any of this gets dismissed on a statute of limitations violation,” Fletcher said.
Another pre-trial fight will likely break out over discovery, the all-important process by which the parties share information with each other.
Fletcher said the Trump team’s request for information could amount to “an ocean of material,” ranging from all the investigation notes and all business and financial records.
“We could be talking about thousands or tens of thousands of pages of materials,” the former prosecutor said. “And, with every page that’s turned over they’ll be able to argue back and forth about whether that’s the complete record of that document.”
Jonathan Turley, a George Washington University law professor, said an “early fight” may brew over a possible gag order on Trump.
In high-profile cases, it has become common in recent years for judges to order defendants to refrain from making public comments on the case.
But Trump is a presidential candidate, and imposing a gag order on him could violate his First Amendment right to free speech, Turley, who appeared as a Republican-invited witness during Trump’s first impeachment hearing, said.
“This is someone running for president, and one of the issues he’s running on is the politicization of the criminal justice system,” Turley said in an interview.
Ultimately, it is the judge who will determine whether to approve a pre-trial motion.
Asked what tactics Trump could use to delay the case, Bader said, “His attorneys can ask the court for adjournments but those are generally at the judge’s discretion and with all the eyes of the nation watching, and primaries right around the corner, this judge may want to keep this case moving without delay.”
On the other hand, Bader noted, “there are several legal issues in the case — many of which are novel questions of law, so the judge will need to give Trump’s lawyers a chance to argue their motions.”
If Trump is acquitted, Trump can hail it as a victory. But if he is found guilty of any of the charges against him, he has multiple options to appeal.
Initially, he could challenge his conviction at the trial court level under New York’s criminal procedure law, arguing that the jury got the case wrong, Fletcher said.
If that attempt fails, he could appeal the case through the state appellate courts and eventually to the United States Supreme Court.
Turley said an appeal could be filed even before a trial takes place.
“If the judge denies the motion to dismiss, Trump’s counsel is likely to ask for a right to go to the Court of Appeals [New York’s highest appellate court], even potentially the Supreme Court before any trial is held,” Turley said.
Editor’s note: This story has been updated to correct the spelling of Cheryl Bader’s last name. VOA regrets the error.
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