Is it time for Jack Smith to throw in the towel on prosecuting Trump?

Our justice system is dedicated to the principle that no one is above the law, not even the president of the United States, much less a former president. Everyone should have his day in court, particularly the prosecutor in a criminal case. But there is no law that says that a criminal defendant must be tried at any particular time.

There are 91 damning felony counts against Donald Trump pending in four jurisdictions, but the outlook for a near-term trial date is not promising. With the clock running out, and the Supreme Court having no appetite for proceeding on Special Counsel Jack Smith’s timetable, it seems more likely than not that there will be no trial of Donald Trump in a federal court before the election.

It has been said that justice delayed is justice denied. And there is enough blame to go around. Sen. Mitch McConnell (R-Ky.) refused to convict Trump in the impeachment proceeding arising out of Jan. 6, and left criminal accountability to the Justice Department.

Trump’s strategy of delay has largely worked. Some of his success has been pure luck, as in drawing the Trump-friendly Judge Aileen Cannon in Florida; some in the uneven approach of the Supreme Court to the timeline; and some to the unexpected Fani Willis imbroglio. And, truth be told, blame may be laid at the feet of Attorney General Merrick Garland, who waited almost two years before appointing Smith to take charge of Jan. 6–related prosecutions.

Pundits are starting to throw in the towel. David Axelrod wrote that “it now appears that American voters will have to act as the jury, if the former president is EVER to be held accountable for his actions leading up to 1/6/21.” Conservative Trump detractor Bill Kristol acknowledges that, “Those who hoped the legal system would stop Trump are disappointed. … Where does that leave the American people? Relying on ourselves.”

Even Smith appears to have given up the ghost. He has asked for a July 8 trial date in Florida in the classified documents case — he obviously doesn’t think the D.C. case will take place this summer.

Legal analyst Elie Honig offers a qualified timeline in which a trial starts in August and we have a verdict in early October. Wishful thinking. As Honig acknowledges, this is if everything breaks Smith’s way.

The Supreme Court knows how to move like Josh Hawley when it wants to. In Bush v. Gore, the court decided the case the day after oral argument. In the Colorado disqualification case, the court scheduled argument 36 days after Trump sought review. But in the D.C. immunity case, it scheduled argument 70 days after Trump’s petition.

And there is the question of when the court will rule on immunity — perhaps not until the very end of its current term in late June or early July. The justices might not issue a final ruling at all, instead remanding the case to the trial court to determine whether Trump acted within the scope of his job as president, although this would normally be a question for the jury.

Then there is the concern that if we get too close to the election, the trial judge, Tanya Chutkan, may not want to try the case. And, if the Mar-a-Lago case is set to fight in July or August, it would effectively block the election subversion case altogether.

Turning to the state court indictments, there will probably be a trial in Manhattan, now set for March 25, on District Attorney Alvin Bragg’s indictment over the cover-up of hush money payments to Stormy Daniels some eight years ago. Harvard Law Professor Laurence Tribe calls this case the “consolation prize” for those who believe in Trump’s legal accountability. Tribe sees it as an “election interference case,” not a mere payoff to a porn star.

But face it, the Jan. 6 case is the big enchilada, and Stormy Daniels is small potatoes. Indeed, there are more political risks in the trial for Bragg than for Trump. Even if Trump is convicted before a hostile New York jury, the chances of jail or political consequences are quite remote. And if he is acquitted in Manhattan, or even if there is a hung jury, Trump will have achieved a significant political victory.

In Georgia, the romantic life of prosecutor Fani Willis has become a sideshow gobbling up the main event. The case has no set trial date and, realistically, there is no chance of its happening this year.

Supreme Court expert Jeffrey Toobin, who never liked the idea of prosecuting Trump over Jan. 6, said on television the other day that Smith should call the whole thing off.

Former U.S. Attorney Joyce Vance, an eloquent advocate for holding Trump accountable, also sees little hope of a federal trial before the election. “It shouldn’t be possible for the 2024 election to take place before a jury decides whether Donald Trump committed crimes in an effort to steal the 2020 election,” she laments. “As citizens, we have legitimate interests in learning the truth before the election.”

So Smith is up against it. What is he to do if the trial is in the court of public opinion, with the electorate as the jury?

He could make an offer of proof to the American people with the facts his investigation has disclosed in the form of a “report” to the attorney general, like the report Robert Mueller delivered in March 2019. While not as good as a conviction, the report might helpfully demonstrate, based on incontestable facts, that Trump was guilty of criminal behavior, that he didn’t just violate presidential norms but crossed the line into a breach of the laws he was sworn to uphold.

Let Trump respond with whatever narrative his stable genius can invent, but it will be for the electorate to decide what kind of president we want in the White House.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.