When Donald Trump faced a civil trial on sexual abuse and defamation charges brought by the writer E. Jean Carroll, the former President elected not to appear in court.
It was his right. But a New York federal court jury, whether influenced by his absence or not, found in favor of Carroll and awarded her $5 million. Trump appealed the verdict and filed a counterclaim.
Now, the former President faces a potential trial date of Aug. 14 in U.S. District Court in Fort Pierce on federal criminal charges that he hoarded classified national security documents and sought to block the efforts of law enforcement to retrieve them from his Mar-a-Lago resort in Palm Beach.
Legal analysts said this week that Trump, who will be tried along with personal aide Waltine Nauta before U.S. District Judge Aileen Cannon, may not be granted the largesse that the court rules afforded him in the civil action. Federal criminal procedures, they say, are different, and would require his presence in court much of the time.
According to the Federal Rules of Criminal Procedure, a defendant generally is required to be present at
- Initial appearances, initial arraignments, and pleas.
- Every trial stage, including jury empanelment and the return of the verdict.
Those constraints might well interfere with the former President’s ambition to retake the White House for a second term. Opinion polls show him well ahead of a growing cadre of would-be opponents for the Republican Party’s nomination, which will be decided next July at the GOP national convention in Milwaukee and after a round of primary elections in multiple states.
Some observers believe Trump’s defense camp will try to push the trial date past the 2024 general election so he would not have to deal with facing criminal charges while running for president. Already, a government prosecution team led by Special Counsel Jack Smith has proposed a later start date than the one proposed by Cannon. Prosecutors have filed a motion to move it to Dec. 11, and the court has given the defense until Tuesday to respond.
Some members of the public would like to see Trump tried sooner than later, according to a POLITICO/Ipsos poll released last week.
In a statement, Ipsos, a New York polling firm established in 1975, found that “more than half of all Americans think former President Donald Trump should head to trial ahead of both the 2024 Republican primaries and the 2024 presidential election.”
The poll, which was commissioned by POLITICO magazine, found that 86% of Democrats think the trial should proceed ahead of the primary and general elections while 46% of the Republicans who responded thought the same. The results were from a sampling of 1,005 Americans who were questioned on June 27-28, IPSOS said. The sample included 374 Republicans, 441 Democrats and 122 independents.
If convicted of the charges in the 37-count indictment, “a plurality of Americans think Trump should be imprisoned,” Ipsos added.
But the Donald J. Trump for President campaign quickly issued a rebuttal, pointing to other surveys such as a Harvard/Harris poll in June that showed a majority of respondents preferred that Trump should not have been indicted at all. The campaign also asserted the Ipsos survey “oversampled” Democrats.
Derision outside the courtroom
Trump remained silent during his June 13 arraignment in a Miami federal courtroom, where he pleaded not guilty to all of the charges. Nauta entered a not guilty plea last Thursday.
Outside the courtroom, the former President has made his feelings well known about his accusers on social media.
The most recent statement came Thursday via his campaign organization, where he called Smith, the special counsel, “deranged,” alleged “extensive prosecutorial misconduct” by U.S. Attorney General Merrick Garland, and demanded a dismissal of the documents case.
Whether those allegations are heard by the jury likely will be determined by the judge in pre-trial motions.
Unlike the Carroll case, legal observers note that Trump would likely spend more time in the courtroom than on the campaign trail after the documents trial starts.
“There was commentary where he probably hurt himself in the (Carroll) civil trial by essentially blowing it off,” said Fort Lauderdale criminal defense attorney Richard Serafini, who spent multiple years as a prosecutor with the Justice Department in Washington. “I don’t know there would be a positive reception for the jury from not showing up. I just don’t see that happening in the real world.”
“I have never seen where a defendant is a part-time attendee for a criminal trial,” he added. “As a defense attorney I would hate that.”
But can a defendant waive his right to be trial? The Carroll civil case aside, there has been no immediate indication that Trump would choose to waive his presence in the documents case.
Benjamin Priester, a law professor at St. Thomas University in Miami Gardens, said defendants can waive their appearances, so long as they don’t do so without notifying the court.
Generally, “a defendant who was initially present at trial, or who had pleaded guilty or nolo contendere,” the federal court procedures say, can waive the right to be present under the following circumstances:
- “When the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;”
- “In a non-capital case, when the defendant is voluntarily absent during sentencing;”
- “When the court warns the defendant that it will remove the person from the courtroom for disruptive behavior,” but the defendant persists and is removed.
“If the defendant waives the right to be present, the trial may proceed to completion, including the verdict’s return and sentencing, during the defendant’s absence,” according to the procedures.
Priester said the consequences for a defendant being absent likely would be different than those if the defendant declines to take the witness stand to testify on his own behalf.
Generally, he noted, if a defendant chooses not to testify, juries are always given instructions that the burden of proof is on the prosecution.
“They shouldn’t draw any negative conclusion that he exercised his constitutional right not to testify,” Priester said. “But it would be different when a defendant has waived his right to be present at trial.”
“I’m sure the prosecution would make the argument that this whole case is about the defendant not being respectful of the law,” Priester added. “We would like him to be here. He has exercised his opportunity under the law to choose not to be here. What would that say about him? In a case involving obstruction of justice, his lawyer, I am sure, would advise him to appear.”
Serafini said that as a federal prosecutor, he never saw a defendant waive an appearance in a complex criminal case.
“It’s very common for a waiver of appearance in pretrial motions and status conferences, that type of thing,” he said. “I would not be surprised if he’s absent for virtually all of those.”
In fact, Judge Cannon in an order advised lawyers for Trump and Nauta that neither of their clients need to be present for a pre-trial hearing on classified documents that is scheduled for next Friday in her Fort Pierce court.
Pre-election trial: Ill-advised?
But the sheer intensity of publicity and potential political consequences of U.S. v. Trump make some lawyers wonder if the case should be tried prior to next year’s election season at all.
“I personally don’t see how the trial could start before the election takes place,” said Ken Swartz, a Miami criminal defense lawyer and former assistant federal defender.
“This is nothing like we’ve ever seen before: a former President and a candidate for president who is ahead in his party’s polls likely to get the nomination is facing a federal criminal indictment,” he said.
“You would have to have the Secret Service everywhere, the publicity, the attention, all of the hoopla that goes with a candidate for president would be too hard to control for a judge. And there’s the accusation that this is going to get in the way of an election. I don’t think a judge wants to jump into that arena.”