Donald Trump’s trial on charges that he conspired to overturn the 2020 election in Georgia would be delayed until 2029 if he won re-election next year because the US constitution prohibits states from interfering with federal government functions, his lawyer argued at a court hearing on Friday.
“I believe that the supremacy clause and his duties as president of the United States – this trial would not take place at all until after his term in office,” the former president’s lawyer Steve Sadow said.
The remark came during an hours-long hearing before the Fulton county superior court judge Scott McAfee, who is presiding over the sprawling conspiracy and racketeering case connected to the efforts taken by Trump and dozens of his top allies to reverse his 2020 election defeat in the state.
While that argument – that Trump would be shielded from the criminal case brought by the Fulton county district attorney Fani Willis were he to become president once more – has been privately discussed for months, this marked the first time Trump’s lawyer affirmed the position in open court.
The remark from Sadow came as the judge grappled with how to schedule a trial date in the case. Fulton county prosecutors had previously asked the judge to set trial for 5 August 2024, positioning it after Trump’s other criminal cases in Washington, New York and Florida.
Trump’s current schedule includes: his Washington trial on federal charges over efforts to overturn the 2020 election on 4 March, his New York trial on local charges over hush-money payments to an adult film star on 25 March, and his classified documents trial in Florida on 20 May.
Fulton county prosecutors’ proposal envisioned going to trial after those cases were complete. But with the New York case and the Florida case are almost certain to be delayed for months, and Trump likely to be the GOP presidential nominee, McAfee put off setting a trial date at the hearing.
The judge said an August trial date was “not unrealistic”, though he added he was uncertain that could be determined months in advance.
McAfee gave no indication how he might rule on a trial date and tried to navigate its politically and legally sensitive nature by questioning Trump’s lawyer and prosecutors on whether proceeding in the summer, just months before the election, would amount to “election interference”.
The arguments were predictable: Trump’s lawyer Sadow argued it would take Trump off the campaign trail during the most crucial time, while prosecutor Nathan Wade contended that Trump was a defendant and it was “moving forward with the business of Fulton county”.
The judge then turned to the question of whether Trump’s trial could even continue should he win the election, with prosecutors anticipating the case stretching into 2025. “Could he even be tried in 2025?” McAfee asked.
Sadow responded that Trump could not, because the supremacy clause in the constitution meant the state’s interest in prosecuting him would be secondary to the federal government’s interest in him fulfilling his presidential role, although how it would apply in a criminal prosecution remains untested.
The situation would apply only to Trump, Sadow conceded – and the judge indicated he would break up the remaining 14 co-defendants so that they would go to trial in several groups. McAfee added that it was still too early to decide how many groups he would create.
Trump and the original 18 co-defendants in August pleaded not guilty to the indictment handed up by an Atlanta-area grand jury charging them with reversing his defeat in the state, including by advancing fake Trump electors and breaching voting machines.
In the weeks that followed, prosecutors reached plea deals in quick succession with the former Trump lawyers Sidney Powell, Jenna Ellis and Kenneth Chesebro – all of whom gave “proffer” statements that were damaging to Trump, to some degree – as well as the local bail bond officer Scott Hall.
The district attorney’s office currently does not intend to offer plea deals to Trump and at least two of his top allies, including his former White House chief of staff Mark Meadows and his former lawyer Rudy Giuliani, the Guardian reported this week.
