All while slow-walking the Biden probe.
All while slow-walking the Biden probe.
T he Biden Justice Department has not only failed to indict Hunter Biden on well-known crimes but has intentionally let the statute of limitations lapse on 2014–15 crimes that implicate President Biden in corruption schemes. Yet the same Biden DOJ, through its special counsel Jack Smith, has proposed a January 2, 2024, date for trial of the most recent indictment it has brought against Donald Trump. That would be the third indictment the Biden DOJ has filed against the former president in the last two months.
The New York Times reports on special counsel Jack Smith’s proposal, as well as his rationalization: Even though a speedy trial is a due-process right of the accused, which the defense may waive in the interest of having a fair trial, Smith claims “the public” — by which he means, the Biden Justice Department — has what the prosecutor argues is a higher interest in the swift administration of justice.
Actually, what the Justice Department customarily says, at least in cases not fraught with politics, is that the public has an interest in the due administration of justice. Obviously, that can be undermined if a case is brought to trial in an unduly swift manner that eviscerates the Fifth and Sixth Amendment rights to prepare for trial and present a defense.
It is not enough to note that the government took 31 months to indict Trump in connection with his schemes to undo his defeat in the 2020 election and now proposes that he be given less than five months to prepare for trial. Smith did this only after indicting Trump in the Mar-a-Lago documents case.
Understand: Knowing full well that he was soon going to indict the 2020 election case against Trump and push for a prompt trial in Washington, D.C., Smith first pushed for a rapid trial in the documents case in Florida. The latter case has thus been ambitiously set for May 15, 2024 (after Judge Aileen Cannon rejected Smith’s absurd proposed date of December 11, 2023).
The Mar-a-Lago prosecution involves mounds of discovery and classified-information-admissibility issues that are notoriously difficult to litigate and that raise the specter of pre-trial appeals. Moreover, Smith has since added new charges and a new defendant through a superseding indictment and is further complicating matters by, for example, objecting to arrangements that would make it easier for the defense to examine the classified evidence at the heart of the documents case, and beginning the process to seek disqualification of counsel for one of Trump’s co-defendants (which, if successful, would require a new lawyer and thus a background investigation for a security clearance to enable that lawyer to review the discovery and prepare for trial).
That is, Smith strategically brought a complex set of charges against Trump in another federal district a thousand miles from Washington, D.C., locked him into a tight time frame that would require intensive effort to prepare for a trial in which Smith has charged Trump with 40 felony counts that, in light of Trump’s age (77), mean he could die in prison if convicted on just one or two; and now proposes to force him to prepare for a second complex trial — on four felony counts that could similarly result in an effective death sentence — in less than one-sixth the time that the government, with its bottomless resources, has taken to conduct its investigation.
Nor is that all. Smith has done this knowing that Trump faces a civil fraud trial starting October 3 in a case involving hundreds of thousands of documents, brought by New York’s attorney general (an elected Democrat); pre-trial hearings beginning in December in the criminal business-records case brought by Manhattan’s district attorney (an elected Democrat); a second defamation trial in Manhattan federal court on January 15, 2024 (which will take a week or two), brought by E. Jean Carroll (whose litigation against Trump has been funded by a major Democratic Party donor); a civil class-action fraud trial in Manhattan federal court on January 29, 2024 (estimated to last two to four weeks), in a lawsuit spearheaded by activist Democratic lawyers (including Roberta Kaplan, who also represents Carroll) and financially backed by another major Democratic donor; and a criminal trial on March 25, 2024, on the Manhattan DA’s charges.
Oh, and it is expected that Trump will be indicted yet again next week in connection with the post–election 2020 schemes, this time in Georgia by Fulton County district attorney Fani Willis (an elected Democrat).
It is fair enough to observe that Trump has brought his troubles onto himself. That’s true in ways big and small.
On the macro end, Trump engaged in conduct that made him liable to criminal prosecution. And I mean that in connection with the events that led up to the Capitol riot as well as the stronger Mar-a-Lago documents case. Even if you believe, as I do, that the offenses alleged in Smith’s election-interference indictment are an imprudent stretch, and that Trump should not have been charged unless the government could establish his guilt on Capitol riot–related violent crimes, there is no doubt that Trump engaged in condemnable conduct. It was entirely legitimate for him to be criminally investigated; whether he should be convicted on the charges brought is a separate question.
On the micro end, in some instances, Trump is principally responsible for the scheduling mess. For example, whatever one thinks of the class-action fraud case’s merits, it was brought in 2018 and the plaintiffs tried to push it to trial or settlement well in advance of 2024; the case has been delayed by Trump’s stalling tactics. He is facing a second E. Jean Carroll case because (a) he doesn’t know when to shut up, so right after he was found liable for sexual assault and defamation in the first trial, he reiterated the same derogatory comments over which Carroll had sued him in the first place; and (b) a defamation claim that should have been decided in the first trial was not because Trump was still litigating, in the appellate courts, the dubious claim that his status as president gave him immunity from arguably defamatory statements made about a matter having nothing to do with his presidency. And the March 25 trial date in the Manhattan criminal case was arrived at with the input of Trump’s own counsel (after the DA’s office sought an earlier date that would have collided more directly with presidential debates and primaries).
But all that said, although presumed innocent at trial, the vast majority of defendants in the criminal-justice system are guilty of at least some of the offenses charged against them, and most of the remaining few have engaged in misbehavior that is worthy of investigation, if not indictment. In that sense, virtually all of them, to some degree, have brought their troubles on themselves. That, however, is a consideration of cosmic justice. It does not vitiate the obligation of the government to provide an accused with all the Constitution’s due-process guarantees.
This is a dark era, in which hyper-partisanship and tribal combat have eroded the tenets that the justice system is not a political weapon and that everyone is entitled to equal protection of law. But it wasn’t long ago when we were debating whether our jihadist enemies, who had killed and plotted to kill thousands of Americans, should be treated as a law-enforcement problem or a national-security challenge. Those of us who contended that wartime enemies should be limited to military commissions, for which there was a long American tradition, were lectured by progressives that America’s standing in the world hinged on bringing even the worst of the worst terrorists into our justice system and giving them all the majesty of American due process.
Habitually, that involved giving jihadist defendants well over a year to prepare for trial. Even though they were in pre-trial custody, which usually induces more urgency, courts agreed that the cases were so complex that speedy-trial extensions were necessary if constitutional standards were to be met. That’s precisely because the public interest is always in the due administration of justice, not the swift administration of something less than justice.
I indicted terrorists for seditious conspiracy and the terrorist leader with inciting crimes of violence. We’re talking here about murderers who were at war with the United States. And unlike Trump, they weren’t facing the prospect of seven or eight trials in the span of a few months — just one. Yet, the commentariat wrung its hands tirelessly about whether our charges were chilling the terrorists’ right to express political dissent and to exercise their religion clearly. Wasn’t the government being heavy-handed? After all, sedition laws have a dark history, and prosecuting people for incitement could intimidate Americans into refraining from constitutionally protected activity — it could even prevent Americans from hearing unpleasant truths about American policy and American history. And could these “militants” really get a fair trial in the city they’d tried to bomb to smithereens?
There was no shortage of melodrama, but the concerns were real. Now though, it’s Trump in the dock, so due process, schmoo process . . . and we don’t need no stinking presumption of innocence! No need to fret over whether some of these cases, or all of them collectively brought rat-tat-tat in campaign season by Trump’s political enemies, might harm constitutional interests or convince half the country that Trump is right about the system being rigged.
In a Justice Department and justice system that set politics aside, as the attorney general claims it does, there would not be such haste to get the Trump cases to trial, much less to get all of them to trial swiftly. With respect in particular to the criminal-justice system, if the government and the states, or at least some of them, stepped aside to let the electoral system play out, it would not prejudice that prosecutions’ cases in the slightest — their evidence would be just as compelling in 2025 as in 2024.
Politics is driving this train, however. That is a malign development.
Donald Trump is not above the law. I’ve said I believe the Mar-a-Lago documents case meets what ought to be the presumption against permitting Justice Department prosecutions to burden electoral politics: serious charges apparently supported by compelling evidence. I don’t think that standard has been met in Smith’s election-interference case, but I do believe Trump should have been not only impeached but convicted and disqualified for his post–2020 election antics. I don’t want him to be president again — something I worry about less than most people of that disposition because I’m convinced he can’t win. Indeed, I think the Democrats behind all these litigation gambits are putting the pedal to the metal because they like how this is teeing up: The indictments and complaints dramatically increase the probability that Trump will win the GOP nomination in spring 2024, and then the evidence from trials and hearings will help sink Trump in November 2024 with the broader swath of general-election voters, with whom he is already deeply unpopular.
But while America doesn’t need Donald Trump, it does need a justice system that is, and is perceived to be, fair and evenhanded. What’s going on here is neither.