He’s Going to Get Away With It

Losing faith in the justice system.

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Former President Donald Trump appears in court on May 7, 2024, in New York City during his trial for allegedly covering up hush money payments to a porn star. (Photo by Mary Altaffer-Pool/Getty Images)

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.

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  1. Brett

    You must see the contradiction now. If Trump gave back documents voluntarily on the second or third ask, they'd charge no crime, you say. That's because there is no law that says thou shalt obey the National Archives. That's why classified docs will always feel kangaroo outside the DC bubble. The only thing that would have been convincing is a crime that could be charged regardless of attitudes. He gave classified maps to a Saudi friend, say. The urge to declare it criminal to disobey the National Archives and FBI requests when no law actually says that has always scared me as to how illiberal many instincts are even among libertarianish people.

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    1. Jfan

      Perhaps I misunderstand, but the crime consists of unlawfully possessing documents which are legally the property of a government agency. Trump isn't a criminal because the NARA demanded he give them back, but because he possessed them in the first place. Thieves can be charged with possession of stolen property even if the rightful owner doesn't send a written request to return it. The crime isn't disobeying an order from the rightful owner.

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      1. Brett

        Then you get to past precedent. Every president since at least Truman has walked out of the white house with classified documents it was illegal to have and shared them with a memoir ghostwriter as Trump did. That hasn't been treated as criminal either. Trump was treated fairly in the sense that in these other cases the former presidents cooperated in an investigation and return rather than immediately charged with a crime. The problem is there's no law requiring cooperation. The laws assumed presidents would want to be cooperative but also assumed presidents would have some classified material it is technically illegal to possess. And the technical violations of other presidents and candidates have been rather sweeping without criminal charges.

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        1. Jfan

          Actually, while the crime of "obstruction of justice" strikes me as often unconstitutionally vague, in this case that statute does amount to a "law requiring cooperation." When Trump directed his staff to hide documents from government investigators, that should count as "obstruction" under any definition.

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  2. Sam Marcum

    So when Lady Justice, which is supposed to weigh the scales blindly, lifts the fold to check the temperature of the room....you're saying it has negative consequences for Lady Justice and everyone else, too?

    Bravo! Agree!

    If they had evidence sufficient to indict the former president before, and compelling cause, then that's precisely what they ought to have done. Waiting for that candidate to announce his candidacy makes it ALL about the election. Of course it does. And his supporters have every right to see it that way, because it is that way.

    The DOJ isn't supposed to care about the election. The people knew, and the DOJ knew that they knew, what the former President was suspected of. If it was worth proving - that is if they could prove it - then they ought to have done so.

    If, carrying that knowledge the people elect him anyway, that is democracy. It's a perfectly well-functioning,(if failing) democracy: the people get what they choose.

    For the DOJ to weigh how a perceived indictment could effect the electorate and/or an election outcome is interference. Similarly, for the DOJ to decide that a particular election outcome isn't acceptable - the sleeping dog isn't! - isn't in their bylaws. Their opportunity to pen the dog, or euthanize the dog, was passed once he announced his candidacy, and he did grant them over two years to do so.

    From Trump's perspective: "If I was guilty of what they say I did, why haven't they indicted me yet? They have nothing." He called their bluff, or at least he things he did. (I think they weren't bluffing.)

    Point is this: anyone involved in the decision to delay should (probably will) lose their job, whether or not Trump is elected: not because of who they want or don't want in the Whitehouse as individuals, but because they, acting as professionals, forgot what they're job is. Prosecute known criminals.

    It should come as no surprise that a left-leaning DOJ wouldn't understand how to effectively do that. They're much better at dismissing charges.

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    Sad Trombone

    It would have been a lot better to worry about two standards of justice back when Sandy Berger was ripping classified docs out of books in the classified room and stuffing them in his socks. It would have been better to prosecute Hillary for bleach biting her 30k docs. It would have been better if Trump had been subject to the same bankruptcy rules that the bottom 99% have to deal with, rather than the .01 percent pre-packaged rules that Biden wrote into the Bankruptcy Code. If he had Trump would be working as a bag boy in Queens paying several billion in restitution clawed back at $15 dollars a month. Unfortunately MBNA hired Hunter Biden as a lobbyist while those rules were being rewritten, at $3.5 million a year, and big bank's lack of due diligence was waived, losses fell on subcontractors and losers. I think your dawning perception of a coming two tiers of justice is sweet, but a little behind the times.

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  4. Janicewfahy

    The wheels of justice grind slowly. American rule of Law at most levels has served us better than any other institution during this, ahem, spirited decade.

    I've worked in the legal field for a long time. I'm a bottom feeder on the ocean of Law truly, but I've gotten to do and see a bit. Legal matters always take longer than you think they're going to. Criminal legal matters against a former sitting United States President? Holy Cow! I assumed we wouldn't see the end of some of the Trump cases for years. I'm grateful to get to verdict in one, the refreshingly sturdy Alvin Bragg case.

    I want the legal issues in all of these matters to be carefully considered by competent jurists and serious people. I have faith that Trump will not "get away with" anything meaningful, but he will appeal and obfuscate and stretch it out as long as he can.

    The wheels of justice grind slowly, but they do grind. Sometimes they grind people into dust. Trump thinks he can grind bigger, faster, harder, louder, longer - but my money's on the wheels of justice by way of American rule of Law.

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    TheLudGirl

    “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.”
    .
    Yes,,, but it should include this caveat: “But just remember: What you vote to allow in with the guy you like now *then sets precedent, along with potentially new and dramatic power increases legislatively to the executive branch meaning it can happen when it’s the guy you don’t like*”… and that’s no small matter.

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  6. Martin.Loring

    Not your best work, Nick. Do you think it's a coincidence that four separate criminal indictments, all instigated by Democratic prosecutors, were issued at just the right time so that Trump would have to spend much of the 2024 campaign season in court? I don't. The excuses you make for the prosecutors, justifying each of the fortuitous delays in issuing the indictments, appear to me to be pure speculation. If you have any authority for those purported reasons (excuses) you should cite them. But you didn't.

    I've never voted for the man, don't intend to, and I think he is an abomination, but it is glaringly obvious to this lawyer that a concerted effort has been and is being made to use the criminal justice system to influence the outcome of a Presidential election. That is wrong, indeed it is reprehensible and dangerous, no matter how awful the Defendant is.

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    Stephanie

    I am not a lawyer. So I may have misunderstood something that I heard Andrew Weissman say on his and Mary McCord's podcast. With regard to the federal trials, they would still be ongoing matters even after a verdict; and could be halted by Trump if he were re-elected, as long as there are any appeals pending, or sentencing has not taken place yet. Assuming he got guilty verdicts.

    My take-away was that even if the trial started a year earlier, sentencing usually isn't until several months afterward, and appeals can take over a year to resolve. So maybe it didn't really make that much difference whether the trial started last year or early this year.

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  8. Ilisachac

    If he gets away with all of his ... crap, why should ANY of us obey any laws? As someone who has always tried to do the right thing in my life, I have been watching this all play out and am left with nothing but cynicism about this entire mess and this country. SCOTUS has nearly destroyed my faith in the judicial system (I still have hope they can muster a majority to do the right thing, just not a lot of hope) and its what I do for a living. Its all so incredibly depressing.

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    Rdoconnell

    Excellent analysis Nick. For some reason you are at your best when the message is "we're screwed no matter what". I don't know if that's more a reflection on you as a writer or the general of affairs.

    But well done regardless.

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  10. Bkeenan0

    When evaluating the “delay” in the January 6 prosecution, why do you not consider the amount of time investigations take? First, phone records are subpoenaed. Then, when specific calls and text are identified, another subpoena is required. Phone companies do not respond instantly to subpoenas. Just these two investigative steps likely took most if not all of a year.

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