Donald Trump’s arraignment scheduled for Tuesday 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 fights the charges, extending the case beyond the 2024 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 a porn actor in 2016. The indictment remains under seal.  

 

“In a typical felony case, you could be talking about a year of back and forth before the case goes to trial,” said Lance Fletcher, a New York City criminal defense attorney and former prosecutor in the Manhattan District Attorney’s office. “If it’s a high-profile case or [involves] very serious charges, this back and forth during the pretrial could easily take two years. So, I wouldn’t be surprised if this took more like two years.” 

An arraignment is a criminal defendant’s first court appearance. At Trump’s arraignment on Tuesday, the judge will read the charges against him, and as is customary of defendants, Trump will enter a plea of not guilty. 

 

After the arraignment comes a series of pre-trial proceedings, followed by jury selection and trial. Though more than 90% of felony cases in New York end with a plea bargain, Trump is not expected to take that option.  

 

That means he will fight the charges tooth and nail even before the case goes to trial.  

Trump’s lawyers have said in recent days that they’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.  

 

But Trump has other tactics at his disposal to fight and potentially prolong the case.  Another important tool in his toolbox: pre-trial motions.  

 

In criminal cases, common pre-trial motions include motion to dismiss the charges for lack of enough evidence, motion to suppress illegally acquired evidence and motion to change the trial’s venue due to publicity.  

 

In Trump’s case, his defense team is expected to raise all of those issues and more, according to legal experts.   

Among other motions, Trump’s defense lawyers will likely challenge the indictment on the grounds of New York’s statute of limitations, said Cheryl Badar, a clinical associate professor of law at Fordham University School of Law. 

 

A statute of limitations is the maximum time after a crime with which a suspect can be charged. 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 payment. 

 

Another looming pre-trial fight will likely revolve around discovery, or the process by which the parties share information with each other. 

 

The Trump team is likely to ask for “an ocean of material,” ranging from all the investigation notes and all business and financial records, Fletcher said.  

 

“We could be talking about thousands or tens of thousands of pages of materials,” Fletcher 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 law professor at the George Washington University, said an “early fight” may arise over a possible gag order on Trump.  

 

In high-profile cases, it has become common for judges in recent years 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, said Turley, who appeared as a Republican-invited witness during Trump’s first impeachment hearing. 

 

“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.  

Each motion filed by Trump’s defense team will likely trigger a government response and lead to one or more court hearings, a back-and-forth that could take months to resolve.   

 

To prolong the case, Trump’s attorneys could 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,” Badar said. 

 

On the other hand, Badar 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, the case will end. But if he is found guilty, Trump could initially challenge his conviction at the trial court level under New York’s criminal procedure law, Fletcher said.  

 

If his attempt fails there, he could appeal the case through the state appellate courts and all the way to the United States Supreme Court. 

 

Turley said an appeal could be filed even before a trial is held.  

 

“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. 
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