There Is No Nonpolitical Case for Trying Trump before Election Day

T here are five main schools of thought on the criminal cases against Donald Trump:

1. Trump is a menace to democracy, as illustrated by January 6 and his effort to overturn the last election, so the government should use the criminal law to prevent him from becoming president again, in order to protect the republic.
2. Trump is being unjustly persecuted precisely for the purpose of preventing him from becoming president again. That’s lawfare — the weaponization of the criminal law for improper, forbidden purposes.
3. Trump’s prosecutions are a political setup to get Republican primary voters to rally around him and nominate him while he is under indictment, after which Trump can be politically destroyed with general-election voters once he is convicted.
4. Trump should be treated like any other criminal defendant and prosecuted as if he isn’t a former president and as if there’s no election going on.
5. Prosecuting a former president and current major presidential candidate is such a dangerous step that the prosecution should have to meet higher standards than usual in justifying its charges as a matter of law and evidence, and should have to act with greater care in ensuring that the criminal case does not distort or impede the presidential election.

I confess that I have at least some sympathy for all five perspectives. We should all want to see the rule of law vindicated, without its being abused or distorted by politics, and show that the same law applies to the mighty and the obscure alike — no more and no less. Trump is being prosecuted by people with political motives (both low partisanship and high political desire to remove a threat to the system), some of the charges against him are outrageously improper, and others have been wielded selectively or overcharged. Trump should be prevented from running again for the good of the country, although it was the job of the Senate to do that, and Republican senators failed when they had the chance. Democrats do have a strong motive to prop up Trump in the primary and then undercut him in the general election, they do have a pattern of acting on such motives in recent elections, and the prosecutors could have brought at least some of these cases a year or two earlier if they’d wanted to avoid trying them during the election. And the legal system shouldn’t ignore reality and pretend that the public has no interest at stake in the prosecution of a major presidential candidate, especially when that prosecution is at the hands of the administration of his likely general-election opponent.

That said, the fifth of these perspectives is the closest to how I consistently think about this case: More important even than the fates of Donald Trump and Joe Biden is the demonstration that the American legal system is adhering punctiliously to its own highest principles in the most politically explosive of cases. And we can’t do that if we just pretend away what everybody already knows about the political context.

The unavoidably political nature of these cases is most graphically on display in two ongoing arguments. One is over the D.C. federal court and the New York civil fraud trial court gagging Trump from discussing the cases. The other is in the jockeying over when to hold the various trials.

Trump wants to delay all the trials until after Election Day. He is throwing up every obstacle he can muster to do this, from dragging out disputes in the Florida Mar-a-Lago boxes case over pretrial discovery of classified documents, to appeals before trial in D.C. of his claims to immunity from prosecution. Because of the precipitate action of Jack Smith in seeking immediate Supreme Court review of the immunity issue even before the D.C. Circuit can get to it, the Court is now being presented with a decision — separate from the merits of the appeal — whether to handle it in a way that has the effect of delaying the trial, maybe until after the 2024 election — maybe even until after the winner is sworn into office.

The response to that possibility has really dropped the mask from the people who are pushing these prosecutions for the first reason (to prevent Trump from regaining the presidency) but have been cloaking their arguments behind the fourth argument (that they are just asking for him to be treated like any other criminal defendant). Jack Smith’s filing with the Court emphasizes the urgent need to avoid “delays” that might postpone the March 4 trial date (the day before Super Tuesday). Partisans go further — witness this screed by progressive columnist Brian Beutler:

If the Republican-controlled Supreme Court intervenes for any reason to prevent a jury from deliberating Donald Trump’s guilt before the 2024 election, it’ll be the most disgraceful decision since Dobbs and the most corrupt and partisan since Bush v. Gore. . . . [The Court has taken up a separate case on the meaning of the obstruction statute charged in January 6 cases.] Simply agreeing to consider this appeal now, this term, while Trump awaits trial, arms the Republican justices with the tools they’d need to help Trump achieve his primary goal of delay.

Why is delay bad? Yes, Trump is motivated by reasons that are blatantly political and nakedly self-serving, but he’s the defendant; the criminal-justice system is built around the assumption that every defendant will act out of purely self-serving motives. That doesn’t relieve the prosecutors or the courts from their obligation to seek justice. As Andy McCarthy has noted:

The prosecutor’s proposed schedule is driven by the political calendar, not law-enforcement concerns. The public does not have a right to a speedy trial — the defendant does, and that right is routinely waived, as Trump has waived it, if the case is complex and requires extensive preparation. The Biden Justice Department took nearly three years to charge Trump, even though the facts by then were well-established; the indictment was strategically timed so a trial could take place during the presidential campaign. Not only did Smith push to force Trump to trial in just a few months after Smith’s own investigators had taken years; the prosecutor indicted in Washington, D.C., only after locking Trump into yet another complex criminal trial in another district a thousand miles away (south Florida). As a result of the special counsel’s methodical plan, Trump must simultaneously prepare, during a presidential campaign, for two trials, each of which would last two months or more, in federal courts where criminal defendants are required to attend every day of the proceedings. It now seems unlikely that the Florida case’s May 20 trial date will hold, but if it did — i.e., if Smith’s plan were implemented — Trump would spend virtually every weekday from March through August 2024 in courtrooms standing trial.

There is no compelling law-enforcement rationale for this. Smith would present the same evidence and make the same legal arguments whenever the trials were scheduled. The schedule is dictated by politics, which prosecutors and courts purport to ignore. If it were happening to a Democrat rather than to Trump, the press would daily bewail the shredding of the Constitution.

Indeed, it used to be the professed policy of the Justice Department to try not to have its prosecutions and investigations interfere with elections. Delays due to appeals by the defendant are never something the prosecutors want, but they do happen, and in cases that aren’t politically charged, the courts let them happen on a normal schedule unless the prosecutor has some particularized reason to accelerate things, such as the possibility that evidence or witnesses may become unavailable.

What does Smith cite as his reason why it’s so important to avoid delay? He doesn’t say. Because he can’t say it out loud without admitting that the calendar is tied to the election.

If you’re going to argue that the people have a right to know before the election whether Trump is guilty of the charges against him, that’s a political argument, not a legal one. It’s not treating him like every other criminal defendant. It’s not an argument with much, or any, precedent in law. And because it’s not a ballot-access issue, it’s not at all clear why it would be “corrupt” or “partisan” for the Supreme Court to decline to consider it.

If you’re going to argue that Trump ought to be criminally convicted in order to prevent him from exercising political power, then that, too, is a fundamentally political argument, not a legal one. You can’t just pretend that it’s a question that arises regularly in nonpolitical cases. (It also takes some chutzpah for Democrats to argue this, given that they left a man chairing the Senate Foreign Relations Committee for 15 months after an FBI raid of his house turned up evidence of foreign bribes.)

The D.C. case is itself political: It’s already been the topic of both an impeachment trial and congressional hearings as well as massive media coverage and hundreds of millions of dollars’ worth of political advertisements. As a political question, it’s not at all clear why the resolution of Trump’s fitness for office in light of his actions after the 2020 election should be decided by twelve jurors rather than 150 million voters.

To the extent that there is any rule-of-law value, rather than political value, to be served by ensuring that Trump is tried before the election, it would be the argument that it may be impossible to try Trump after the election if he wins the election. After all, the federal cases could be shut down by Trump once he controls the machinery of the Justice Department, and Trump’s role as president-elect and sitting president would be a formidable barrier to trying him in state court. But even then, none of that matters if Trump loses the election; the argument is instead that we can’t allow the voters to place this man beyond the reach of these charges. Which is a hard case to make in public without disclosing your mistrust of those voters and your preference for having the decisions of a national electorate subordinated to the decisions of local juries in deep-blue cities. It is also a more dubious case to make when you’re discussing charges that are so enmeshed in long-standing political disputes and/or involve highly creative stretches of the law.

In either event, don’t pretend that we’re just discussing how to impartially apply the same law to Donald Trump that applies to any other defendant. We’re on uncharted ground, and these are uncharted arguments, all of which flow from the unique political circumstances. There’s no decision to try Trump before Election Day that isn’t a political decision.