He’s Going to Get Away With It
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From the Boiling Frogs on The Dispatch
Does the public have a right to a speedy trial in a federal criminal case?
The defendant has that right, of course, under the Sixth Amendment and the Speedy Trial Act of 1974. But what if the defendant doesn’t want his trial to be speedy?
What if, for nakedly political reasons, he wants to drag it out as long as he can?
Some very good lawyers would tell you that, by setting a timetable for federal prosecutions, the Speedy Trial Act grants the public—represented by the Department of Justice—a right to an expeditious process even if the defense disapproves. To a bad, failed, libertarian-leaning lawyer like me, that seems suspect: The point of procedural rights like the guarantee of a speedy trial is to protect the defendant from abuses by the immensely powerful state that’s trying him, not vice versa.
If we all agree that Donald Trump should be treated the same as any other criminal defendant, neither above the law nor below it, then he should have the same right as any other defendant to delay his trial, no?
Well, no, actually. The problem with arguing that he should be treated like any other criminal defendant is that he isn’t one.
He’s already been treated favorably by the justice system in ways that few other criminal defendants would be. One obvious example is the extreme patience the DOJ showed in seeking the return of classified material he had squirreled away at Mar-a-Lago. Try stashing top-secret documents in your home and misleading the feds about it and see how patient they are with you by comparison.
Another example is how he continues to flout the gag order imposed on him in his criminal trial in Manhattan with little consequence. Judge Juan Merchan sounded almost apologetic in holding Trump in contempt for a second time on Monday, bending over backward to avoid sentencing him to time behind bars. “It’s important to understand that the last thing I want to do is to put you in jail,” he assured the defendant. “You are a former president of the United States and possibly a future president, as well. … There are many reasons why incarceration is truly a last step for me.”
Trump is different. We can pretend otherwise if it makes us feel better about norms but the justice system itself has quit pretending.
And the most important difference is this: In less than six months, he could become the first federal defendant in the history of this country to gain the power to dismiss criminal charges that are pending against him. In this very special, singular instant, the public has an extraordinary interest in wanting to see the cases against him proceed speedily for the simple reason that, if he isn’t tried before Election Day and ends up winning, he’s never going to be tried in those federal cases. Period.
On Tuesday we learned that he almost certainly won’t be tried before Election Day in the strongest of the four prosecutions he’s facing, the classified-documents case in Florida. Trump allegedly absconded with some of America’s most sensitive secrets upon leaving office, then spent two years brazenly concealing them, lying about it, and obstructing efforts to get them back—and he’s on the brink of getting away with all of it.
If he does, public faith in American justice will never be the same.
For the past nine years, reading political commentary has meant drowning in anecdotes about Trump voters losing trust in the system. That’s one of the basic arguments against prosecuting him, in fact. If you think the average joes in Youngstown wearing red hats were suspicious of the establishment before, imagine how they must feel watching their leader be buried under criminal charges in the thick of his reelection bid.
I take the point, but I also resent how the fascination with Trump’s blue-collar popularity tends to implicitly excuse his acts of civic degeneracy. It’s way too short a trip from, “What terrible hardships led these downtrodden people to turn to this amoral cretin?” to “We should go easy on this amoral cretin lest we further antagonize these downtrodden people.”
Focusing on the disillusionment of MAGA voters also has the effect of rewarding Trump for discouraging faith in American institutions. He cultivates that disillusionment deliberately, as all authoritarians do, because it nudges his supporters to shift their allegiance away from the constitutional order and toward him. To believe that we shouldn’t charge him because doing so might deepen the popular disaffection he’s sowed is to create a very perverse incentive for demagogues eager to hedge their risk of criminal jeopardy.
Nine years in, we’re all sick and tired of hearing how disillusioned “real Americans” are.
Today we’re going to consider how disillusioned the rest of us—“unreal Americans,” if you like—will be if the justice system can’t manage to bring Trump to trial before Election Day despite having had literally years to do so. If our own collective and deepening disillusionment about Trump’s impunity had been taken more seriously relative to the din from Youngstown, maybe the justice system would have gotten its act together sooner.
Let’s talk about Aileen Cannon, who’s being pilloried today for her order on Tuesday delaying Trump’s classified-documents trial indefinitely.
Judge Cannon was dealt a bad hand when that case landed in her lap in Florida. Trump critics already viewed her with suspicion due to the, er, interesting way she handled the initial seizure of sensitive material from Mar-a-Lago. Once she got stuck presiding over the ensuing criminal trial as well, any ruling she issued in the defense’s favor was sure to be attacked by Trump’s opponents as biased.
Worse, the nature of the case assured that it would proceed slowly in order to accommodate the parties’ review of the relevant classified documents. Cannon was destined to be blamed for that slow pace, fairly or not. It’s a tough spot for a relatively inexperienced judge, particularly when the defendant happens to be the man who put her on the federal bench.
But it is curious that, rather than move the trial’s opening from May to July, as special counsel Jack Smith requested, Cannon chose on Tuesday not to even propose a new start date. It’s also curious that she blamed the backlog of pending pretrial motions for her decision to delay, since of course it’s the judge herself who’s responsible for handling those expeditiously. In fact, the original hearing on when the trial should begin was held all the way back on March 1; it took her more than two months to arrive at the decision that she hasn’t decided yet.
Some of her rulings, like requesting proposals for jury instructions from the parties in a trial that’s not even on the calendar yet, seem bizarre. And she’s been surprisingly solicitous of some of Trump’s lamest arguments, like the idea that the Presidential Records Act allows him to magically convert classified material into his personal property. “Over and over, Judge Cannon, who was appointed by Mr. Trump, has treated seriously arguments that many, if not most, federal judges would have rejected out of hand,” the New York Times delicately noted on Wednesday.
“Unreal Americans” are watching all of that and wondering.
We’re wondering why, given the extraordinary public interest in seeing this trial take place before Trump gains the power to blow it up, Judge Cannon seems in no hurry to move it along. (Contrast that with the Supreme Court, which has moved at “warp speed” to decide Trump’s claims of absolute immunity in the January 6 case against him.) We’re also mindful that the defendant in this matter has a habit of rewarding demonstrations of “loyalty” by cronies with presidential favors. We don’t need to impugn the judge’s motives to recognize this simple fact: A favorable outcome for Trump makes it very likely that Cannon will be nominated for a higher-court vacancy during his next term whereas an unfavorable outcome all but assures she won’t.
A lot of faith in the system will be lost if this case sputters out before November, as now seems all but certain.
To that one might say, “It’s not Judge Cannon’s job to care whether ‘unreal Americans’ will lose faith if Trump isn’t held accountable for his classified-documents chicanery. It’s her job to rule fairly on the individual questions before her.” I agree—but faith in the justice system among the American right is a recurring concern whenever the system confronts Trump. When that happens, we’re unfailingly treated to hand-wringing about how much more dangerously alienated “real Americans” will grow from their country’s institutions upon seeing them confront populism’s champion.
If you doubt it, consider how the Justice Department has handled all of this.
The DOJ’s anxiety about faith in the rule of law is how, paradoxically, we ended up with the hair-raising spectacle of a presidential nominee facing criminal charges in the home stretch of a national campaign.
Populists would have you believe that the DOJ dragged its feet cynically to “time” the proceedings for maximum interference in that campaign, but the fact that both of the federal cases pending against him now stand a high chance of being quashed by a newly reelected Trump before ever being gaveled in puts the lie to that.
The real reason the department dragged its feet in charging him is simple. Mindful that a former president has never been criminally charged, and knowing that half the country has been primed by him to fear and loathe the “deep state,” the DOJ strained to avoid a confrontation with Trump if one could at all be avoided. It let the right’s disillusionment with the justice system influence their willingness to pursue Trump, forgetting that failing to hold him accountable might disillusion everyone else.
Take the classified documents case. Eight months passed between the time that the National Archives referred the matter to the DOJ and the FBI’s search of Mar-a-Lago, then another 10 months before Trump was indicted by a grand jury in the summer of 2023. Now here we are in March 2024, at dire risk of the trial being short-circuited by the Election Day deadline.
But what should the Justice Department have done?
Should it have slapped a former president with criminal charges the instant he showed reluctance in returning the material?
Of course not. The responsible thing to do to avoid needless civil strife was to politely ask—and ask, and ask, and ask—for the documents back until it became painfully clear that Trump would never voluntarily return all of them. So that’s what the DOJ did. It bent over backward to avoid a confrontation because it knew that Trump’s supporters would fault the government entirely if that confrontation took place.
And Trump knew it too, of course, which is why he felt comfortable holding onto those documents in the first place.
The department moved even more slowly in the case against him for trying to overturn the 2020 election, which could have been brought at any point after January 20, 2021, yet ended up taking more than two and a half years to produce an indictment. That too has now become a race against time to reach a verdict before November 5, 2024.
Again the DOJ hemmed and hawed over filing charges because it didn’t want a confrontation with Trump. And it would have avoided one, I suspect, if he had simply left politics the way defeated presidents usually do. As much as he deserves to be charged for his coup plot, the department likely would have concluded that the civic benefits of letting sleeping dogs lie outweighed those of charging a former political leader who enjoys a huge popular following.
The department dragged its feet—until Trump made clear that sleeping dogs would not be allowed to lie by pursuing the presidency again. It’s one thing to let a corrupt politician slide on crimes he committed if he’s banished himself from politics and quite another to let him do so when he’s waltzing back to the White House.
So they charged him, very belatedly. And their reward for being patient and trying to avoid a confrontation is having his trials now play out in the most politically explosive, norms-busting environment possible, with a high probability that the defendant will succeed in terminating them before completion.
“Unreal Americans” are watching all of this and wondering.
One thing we’re wondering is this: When should the DOJ have indicted him in order to minimize the damage to American norms? If the goal was to convince “real Americans” that the charges against him are legitimate—which would never, ever happen so long as he continued to lead the party—what would have been the opportune time to file those charges?
There is none, of course. It’s a trick question.
If the DOJ had pursued Trump aggressively for his coup attempt soon after Joe Biden took office, many of the same people complaining now that it took too long to charge him would have complained that it moved too soon. The country was tense after January 6; Americans were ferociously divided over the election. But sanity had (barely) prevailed and Trump had been expurgated. Why make the situation worse by indicting the defeated candidate? America needed healing, not the gratuitous prosecution of a former president.
The same logic applies to the classified-documents case. The DOJ was excessively patient with Trump because it would have been excoriated if it hadn’t given him every opportunity to return the material voluntarily with no legal fuss or muss. If you want to indict a former president in this country, especially one who still leads his party, you need an airtight case that he left you no choice. That means waiting until there’s no reasonable alternative. So it did.
The Justice Department was foolishly considerate of the feelings of Trump voters who were always going to conclude that it had behaved illegitimately in confronting him, whatever the underlying facts might be. If it had charged him quickly, it would be guilty of needless aggression; because it waited to charge him, it’s guilty of election interference. The truth is that “real Americans” believe there’s no circumstance in which Trump can properly and legitimately be charged for crimes he commits, as the man himself well understands. “Absolute immunity” is what he and they seek, to borrow a term.
That’s what Trump is now on the precipice of achieving, not because the Supreme Court granted it to him as a matter of law but because voters look prepared to grant it to him by reelecting him. And so we have the worst of all worlds, with “real Americans” disillusioned that he was prosecuted at all and “unreal Americans” disillusioned that he was prosecuted too late to have any effect.
Those of us in the latter group are now left to wonder: If Congress won’t restrain Trump by impeaching and convicting him, and if the justice system can’t restrain him by holding him accountable in a timely manner, which institutions are left to do so? We’re told to have “faith in the system.” What system?
There is one institution left, of course.
That would be the election system, although it’s the great work of Trump’s political career to destroy faith in that one as well when it produces outcomes he dislikes. And that work continues, with remarkable success.
Still, the election system might come through. It seems to me that the prospect of Trump escaping accountability in the various criminal cases against him if he returns to the presidency is a powerful pitch potentially to disgruntled swing voters.
It’s hard for Biden to win an argument against Trump on policy. Like it or not, the economic debate will boil down to, “Which president kept prices lower?” It’s also hard for Biden to win an argument on fitness, as most voters consider that question from the standpoint of vitality rather than character.
But an argument over the justness of a criminal defendant exploiting executive power to cancel his own trial? That’s viscerally grotesque. It hits you in the gut in a way that airy pronouncements about democracy do not. The same goes for Trump’s idiotic promise to pardon the January 6 insurrectionists. I could give you 800 reasons to vote against him in November but, for me, that one suffices.
“He’s going to get away with it.” Biden can’t make that point himself on the trail, being the man to whom the DOJ answers, but Democratic surrogates can and will. They should make clear that the choice in November is nothing more or less than whether to grant one candidate the kingly power to place himself formally above the law. If that’s the kind of country you want, you know how to vote. If it isn’t, ditto.
One side or the other will lose what’s left of its faith in America depending on how it shakes out. It didn’t have to be that way. We know who to blame for the fact that it is.
