If the defendant here were anyone else, there would be public outrage over the unabashed politicizing of the prosecutorial process.
If the defendant here were anyone else, there would be public outrage over the unabashed politicizing of the prosecutorial process.
I ’ve had occasion to observe before that Winston Churchill had the right instincts about courtroom prosecutions for our most monstrous wartime enemies. American progressives insisted that such proceedings would imbue the inevitable executions with what they saw as a desirable tinge of judicial propriety. Such trials, the prime minister repined, “would be a farce.”
There are certain rudimentary assumptions about what a trial, as understood in the Anglo-American tradition, should be. If we are not prepared to grant them, to insist on them as the guarantor of equal protection under the law in a free society, then the exercise — whatever we may want to call it — is not a trial. It’s a theater production. It’s a way for the regime to masquerade as virtuous while the accused receives just a simulacrum of justice, and society’s rule of law erodes.
The rule of law can abide only so much erosion.
Churchill was right (before his regrettable second thoughts) because war is not a judicial proceeding. We don’t presume the enemy innocent, so a trial is pointless. If we’re not prepared to presume an accused innocent and live with the possible consequences — in particular, acquittal — we shouldn’t sully the grandeur of due process by pretending to apply it.
I say this as a onetime Pollyanna who was mugged by reality. When I began prosecuting terrorists in the early 1990s, I believed what we were saying as a government about the significance of being a shining example to the world: the need to roll out the majestic carpet of American due process for foreign enemies whose main connection to our country was to plot mass-murder attacks against our citizens. I was changed by the rubber-meets-the-road business of trying to make that aspiration work without getting more Americans killed in the process: How insane was it to disclose our intelligence to our enemies, in compliance with discovery rules, while our enemies’ cohorts were still plotting to destroy us and would use our intelligence to become more ruthlessly efficient?
So yes, I came around to the idea that a different system for dealing with enemy combatants was desirable — but mainly for the sake of preserving the justice system, with all its due-process protections, for the accused Americans whom the justice system exists to safeguard. If you bend the rules — lowering the burden of proof to convict or to invade privacy, restricting the accused’s right to inspect the government’s files and mount a defense — you don’t just bend them against jihadists. Every bend becomes a precedent, reducing everyone’s quality of justice.
To this day, though, I remain ambivalent about this unwelcome wisdom. Even if unworkable, there was something deeply admirable about the vision of American justice as the shining city on a hill. There was no doubt that the people seduced by it were good people — people who believed to their core the maxim that to spread our principles we must live our principles, a prospect that, it was dubiously assumed, would make the world progressively more just.
Alas, it turns out that, for many progressives, the nonnegotiable demand that we heed “our values” and extend the Bill of Rights in all its glory to the enemies of America becomes a highly negotiable proposition when the enemies of progressives are in the dock.
Donald Trump is many things, some of them malevolent. But he’s not an enemy combatant, or even a career criminal. He is accused of violating the criminal law, and some of the charges are quite serious (some are not only unserious but dangerous to the future functioning of democratic politics — but that’s for another day). Where the allegations are colorable, Trump should be held accountable, but only after one or more full and fair trials. This requires that he be given all the due-process advantages our system is obliged to provide — and, at the insistence of Trump’s political opponents, would not dare resist providing if the accused were a foreign terrorist, an illegal alien, or a radical lefty lawyer whose idea of social-justice activism includes firebombing police squad cars.
It is no secret that I am not a fan of special counsel Jack Smith’s election-interference prosecution of Trump. To my mind, if the government could not prove that Trump was criminally complicit in the violence of the Capitol riot then he should not have been charged with crimes arising out of non-violent post-election shenanigans. Had the riot not happened, those actions would be indistinguishable (at least in kind, if not degree) from Democratic election-denial antics — the kind of stuff that, even if technically lawless, we roll our eyes at and move on from, grasping the significant downsides of intruding law-enforcement into politics.
If we avoid making martyrs of the performance artists, the body politic has a way of marginalizing them . . . as “Governor” Stacey Abrams and “Presidents” Al Gore and Hillary Clinton could tell you. Indeed, if Donald Trump has a chance to become president again (and I’m still confident he doesn’t), it is because Democrats decided to sic the prosecutors on him.
It is dawning on some Democrats that they’ve created a Frankenstein monster. But they don’t know the half of it: Sure, the devious strategy of leveraging prosecution so Trump wins the nomination then loses the general election will end in Trump’s November 2024 defeat if Republicans mulishly nominate him; but by convincing more than half the public that equal protection of law is no longer an American tenet, and that prosecution is a political weapon to be wielded by the incumbent party, they have exacerbated our divisions, perhaps irrevocably.
My point here, however, is not to revive the debate over Smith’s charges. I think he is trying to stretch fraud, corrupt intent, and other criminal-law concepts in order to police electoral politics in a way that Congress did not intend and that, I suspect, the courts will ultimately not indulge (although Judge Tanya Chutkan probably will). But I could be wrong about that; time will tell.
What I want to object to here is the process, which would be better described as the parody.
Smith has brought a complicated case in Washington, D.C. He is prosecuting a former president for actions that were taken in office, arguably within the ambit of executive power. (I am not saying the actions were laudable, or even proper; just that it could be argued they were actions a president has the power to take — just as a corruptly motivated pardon is an action a president has the power to take, and a prosecutor no authority to indict.)
Whether you think it’s a good idea or not (I think it’s a bad idea), resorting to the legal process of criminal prosecution in a context the Constitution reserves for the political process of impeachment is fraught with complications (some of which are sure to catch us by surprise). Even if Smith’s applications of fraud, obstruction, and civil-rights law were straightforward (they’re not), there would be significant questions about presidential immunity, the chilling of constitutionally protected speech, and criminalization of the petitioning of government. Maybe Trump will lose each and every motion, but I wouldn’t bet on it. However it comes out, it will take time to litigate these matters fairly — something we all have an interest in since it transcends Trump: These precedents will control our elections and our politics for decades to come, including in times when Republicans run the Justice Department and Democrats mendaciously deny election results — hard as that may be to imagine.
Moreover, while this case could have been brought a year or more ago, the Biden Justice Department and Smith opted to bring it smack in the middle of the presidential-election campaign — and have now persuaded a judge to schedule an early trial date at the height of the primary season.
It was outrageous to do this. The claims by the prosecutor, parroted by the judge, that the public is entitled to a speedy trial are Orwellian. The Constitution entitles the accused to a speedy trial, not the government. The court’s job is the due administration of justice, not the rapid administration of justice. If a defendant waives his right to a speedy trial because, objectively, the allegations and their context are complex, then the defendant is entitled to a reasonable amount of time to prepare for trial, investigate the charges, research and submit pretrial motions, and prepare a defense.
Again, courts routinely make such accommodations for terrorists and mafia dons, whose cases often take a year or more after indictment to get to trial, even when the defendants are incarcerated. Of course defendants do not want to be detained pretrial, but they frequently agree to endure it, rather than demand a speedy trial, because preparing a defense is a higher priority. A judge who rushes a defendant to trial, rationalizing that there is a public interest in a prompt resolution, shreds the defendant’s rights and thereby disserves the public’s paramount interest in the integrity of judicial proceedings.
Furthermore, it is quite something to hear Chutkan admonish that Trump’s status as a serious candidate for the nation’s highest office is irrelevant. Her conceit that nothing takes precedence over the court’s processes is breathtaking arrogance. Just as no right is absolute, no authority in the United States is absolute, either. Every right has to accommodate other rights and public interests. So does every authority.
In a constitutional republic, the public has many interests on a par with the fair and efficient resolution of judicial proceedings — as important as that interest undeniably is. Courts make accommodations all the time for interests that are of markedly less consequence to the public than (a) the constitutional right of a candidate supported by tens of millions of Americans to campaign for public office, and (b) the interest in elections that are as free as practicable from interference by the law-enforcement apparatus controlled by the incumbent political party. Indeed, the Justice Department delayed for months — months that have become years — in pursuing the prosecution of the incumbent president’s son, Hunter Biden, who was never a candidate, rationalizing that ordinary law-enforcement activity might unduly sway the electorate.
No, no one is above the law. But just as being a political candidate does not provide immunity from prosecution, political considerations are not a proper concern of a court. Judge Chutkan’s job is to give Trump a fair trial — and a March 4 trial date is not fair. I am not criticizing her for being hostile to the former president, which she transparently is. It often happens that judges dislike the defendants over whose cases they are assigned to preside; many criminal defendants, after all, are sociopaths. Judges are only human. We don’t expect them to like their defendants. But we demand of them that they check any animosity at the door and enforce the Constitution’s safeguards, no matter how loathsome they may find a defendant — or recuse themselves if they cannot do that in good faith.
Whether it is before or after November 5, 2024, that the voting public learns a jury has found Trump guilty or not-guilty is not Chutkan’s concern. The public has Smith’s indictment and voluminous other information about what happened between Election Day and the Capitol riot. Undoubtedly, most voters have already made up their minds about Trump’s actions — which were condemnable regardless of whether they are convictable. A guilty verdict prior to the election is a priority only for Democrats and their campaign messaging; in this context, Chutkan is supposed to forget that she’s a Democrat and be a judge.
If the defendant here were anyone other than Trump, there would be public outrage over the unabashed politicizing of the prosecutorial process.
It is not just that Smith brought a complex case with over 11.5 million documents provided in what apparently is just the initial tranche of discovery. Before doing that, Smith exercised his discretion to indict Trump in another case, in a jurisdiction a thousand miles away — a prosecution that raises all of the immense complications of classified documents, the admissibility of which must be litigated pretrial, with the potential for rounds of appeals. Smith then pushed the judge in that Florida case for a late 2023 trial date that any experienced criminal lawyer would have scoffed at as implausible. Yet the tactic worked to the extent that Judge Aileen Cannon has scheduled a May 2024 trial — an ambitious date.
Only after locking Trump into that trial did Smith indict him again in the Washington, D.C., case, and then undertake to press the judge there for an early trial. That is, the prosecutor tactically schemed to make Trump prepare simultaneously for two complex federal prosecutions — under circumstances in which any other defendant would have been given more time to prepare for just one of them, even if he weren’t lawfully running for public office, and even if he weren’t additionally facing indictments brought by elected Democratic state prosecutors, as well as three civil trials brought by an elected Democratic attorney general and Democratic activists.
Understand: the politics of when Trump gets tried should be of no concern to the Justice Department and its special counsel. Smith’s cases against Trump would not be compromised in the slightest if one or both were tried after November 2024. Is it possible that Trump or another Republican could shut the case down or issue a pardon if elected? Of course it is — just as President Biden could pardon Trump if he thought there were great political advantage in it. But what the chief executive may or may not do about a case is outside the prosecutor’s lane. A prosecutor is not like any other lawyer; in addition to competently presenting the government’s case, the prosecutor is dutybound to ensure that the defendant gets due process — enforcing the civil-rights laws means enforcing a defendant’s civil rights, too. It should be no part of Smith’s calculus to get a verdict on an election-calendar deadline propitious for Democrats.
You can agree, as I do, that Trump is not above the law. But he’s not below the law, either. If he is denied due process — if the point of the exercise is to brand him a convict rather than to presume his innocence and give him a fair opportunity to contest the cases — then what is happening is a farce, not a trial.