The Huge Legal Questions Ahead in 2024
Decisions to watch for as Donald Trump tries for a comeback while under indictment.
WELCOME TO 2024—a year that means life or death for American democracy.
The legal questions that will be in the news this year are legion and epic. It is difficult even for lawyers to keep things straight, partly because Donald J. Trump has pushed the boundaries of the Constitution and the rule of law beyond where any president or former president has ever dared.
His defenders routinely suggest that the novel circumstances in which we find ourselves—the lack of precedent for a prosecution, or for employing clear constitutional language to ban someone who tried to subvert the peaceful transfer of power from being re-elected—somehow mean that the legal system is powerless to do anything about Trump’s existential threat to our constitutional democracy. But those are ultimately political arguments, not legal ones.
Meanwhile, Trump recently told radio host Hugh Hewitt that “I’m going to rule as somebody that’s very popular with the people”—as if America has “rulers.” His agenda could not be clearer: unfettered power to use as he likes against those he dislikes.
But all hope is not lost. Between Special Counsel Jack Smith and the U.S. Supreme Court justices, there remain a handful of lawyers and judges whose decisions could directly affect the presidential election. Here are three of the key legal issues to watch in 2024.
1. Timing of the criminal trials.
Trump is a criminal defendant in four cases, three of which currently have trial dates:
March 4, 2024 for the January 6th case pending in federal court in Washington, D.C.
March 25, 2024 for the financial fraud charges under New York law.
May 20, 2024 for the Mar-a-Lago classified documents case in federal court in Florida.
(The racketeering case against Trump in Fulton County, Georgia has no trial date yet. Although District Attorney Fani Willis asked the judge for an August 5 trial date, she has indicated that there’s no way the complex case will go to verdict before the November election.)
The federal cases could be delayed for a host of reasons, including that U.S. District Judge Aileen Cannon—a Trump appointee who last year irresponsibly gave him a special master to oversee the FBI’s review of the documents retrieved from Mar-a-Lago—is a wild card.
For now, though, the two federal cases have trial dates and they are the pivotal ones for the November election, because if Trump has a felony conviction and sentencing date under his name, it might sway a few voters. It won’t keep him off the presidential ballot, however. Numerous states ban convicted felons from running for state office. But in 1995, the Supreme Court ruled in U.S. Term Limits v. Thornton that states cannot create new qualifications for the presidency beyond what’s in the Constitution: status as a natural-born citizen, at least 35 years old, living in the United States for at least fourteen years, not having already served two terms in office, and with no record of having engaged in an insurrection or rebellion after having taken an oath to uphold the Constitution. Which leads to the next point.
2. Absolute immunity for presidential crimes.
The U.S. Supreme Court has been asked by Trump to dismiss the January 6th case—and in effect, all cases against him relating to conduct while he was president—on the theory, boiled down, that Article II of the Constitution allows presidents to commit crimes with impunity just because they are president. Trump is framing the issue as one of presidential immunity, which has some scant precedent, but by no legitimate theory expands to insulation from legal accountability for crimes in office.
But for Trump, delay is everything, and this issue has already stalled the January 6th case. Smith asked the Court to expedite the appeal by skipping over the intermediate appellate court, and U.S. District Judge Tanya Chutkan stayed the pre-trial proceedings pending the appeal, but the Supreme Court said no to Smith’s request. The D.C. Circuit is set to hold oral argument on the issue on January 9.
Trump will undoubtedly lose his absolute immunity bid, although a divided Supreme Court majority could throw him a few bones that might conceivably affect how the trial unfolds. In any event, the delay probably won’t push things past November. Even if the Court holds off on ruling until the last minute, just before it goes on recess in June, Smith could still go to trial in July, with time for a jury verdict before November 4. The Court could also decline the appeal on the theory that it’s premature, as an amicus brief filed by a nonprofit legal watchdog group argues, but that’s unlikely. (Normally, criminal defendants have to wait to the end of a trial to raise all of their complaints about the prosecution’s case rather than hopping up to the appeals courts midway.)
3. Ban on insurrectionists becoming president.
The Supreme Court will also undoubtedly be asked soon to weigh in on the decisions by the Colorado Supreme Court and Maine’s secretary of state to keep Trump off the ballot under Section 3 of the Fourteenth Amendment, which, as noted above, bans people from holding federal office if they took an oath to support the Constitution but went on to engage in an insurrection.
The public pushback against Colorado and Maine has been strikingly substantial across the political spectrum. Many people seem persuaded by the notion that only a criminal jury verdict that Trump engaged in an insurrection beyond a reasonable doubt could legally keep him from applying for the job as president, a notion that loosely throws around the term “due process.” This is another political argument rather than a serious legal one. Constitutional due process only applies if the outcome means the government could take away someone’s life, liberty, or property, which denying what’s effectively a job application for president doesn’t do. Even if it did, due process doesn’t require a full-blown criminal jury trial. Trump got a trial on this matter before a judge in Colorado, so in Colorado he got the process he was due.
Still, if the U.S. Supreme Court takes up this issue, it’s impossible to predict how it will come out. The progressives on the Court (Sotomayor, Kagan, Jackson) can be expected to defer to the states—a traditionally conservative stance—while the justices furthest to the right (Thomas, Alito, possibly Gorsuch) will likely back Trump with vigor. That leaves Roberts, Kavanaugh, and Barrett. If the Court overrules Colorado under Section 3, it’s hard to imagine what would be left of that part of the Constitution; conservatives might want to save it for a rainy day in the event that a Democratic president decides one day to engage in an insurrection and run for office again. The legally conservative and originalist case for siding with Colorado is strong. But because political power hangs in the balance, and because this Supreme Court isn’t shy about throwing its political weight around these days, this question really could go in any direction.
AT THIS POINT, THE ODDS ARE STRONG that the federal trials could be pushed into the summer. Meanwhile, the final state primaries are slated to occur on June 4, with the Republican National Convention scheduled for July 15 to 18 in Milwaukee. There’s no federal deadline for seeking the nomination of a major party, but states’ various requirements wrap up in March. At that point, unless the January 6th case’s trial date holds, Republican party leaders and donors won’t know much more than the rest of us when it comes to whether their pick for 2024, Donald J. Trump, can add “felon” to his resume.
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