Justice Delayed Is Justice Denied

“I think all of the cases should be dealt with before November,” Nikki Haley said Thursday when asked about Donald Trump’s many pending criminal trials. “We need to know what’s going to happen before it, before the presidency happens, because after that, should he become president, I don’t think any of it’s going to get heard.”

“I just think a president has to live according to the laws, too,” she added. “You don’t get complete immunity.”

You can count on one hand the number of Republicans with a national profile who are willing to lend that much public credence to the prosecutions against him. Day by day, hour by hour, Haley is inching closer to “the full Liz.”

And not a moment too soon, as her candidacy isn’t long for this world.

But she’s not going to get her wish. It’s far more likely that none of Trump’s criminal cases will be resolved before Election Day than that all of them will.

In three of the four pending matters, I think Trump’s critics can live with that. The one that stands the best chance of coming to trial before November, the Stormy Daniels matter in New York City, is one in which they’ve never been emotionally invested. It’s so stale and overtly political, even to many of his political enemies, that even a conviction is apt to seem illegitimate.

Fulton County’s prosecution for election interference has also grown less savory as the district attorney’s ethical foibles have turned messier. And expectations for a timely trial in the federal case involving classified documents were always low, partly because litigation involving sensitive information moves at a slower pace and partly because the Trump-appointed presiding judge may or may not be sympathetic to the defendant.

In those three cases, Trump’s critics are prepared for disappointment. The fourth is different.

The federal case against him for attempting to overturn the 2020 election is The Big One because it cuts to the heart of the moral and civic argument against him. He attempted the first coup in U.S. history; it’s a singular disgrace, dangerous enough that it can never be repeated. After a long life lived with impunity for disgraces great and small, there must, for once, be accountability for Donald Trump. And there’s no reason it shouldn’t happen quickly: Surely the American justice system can manage to prosecute a coup plot arising out of the last presidential election before the coup-plotter faces voters again in the next one.

It can’t, it turns out. On Wednesday, the Supreme Court announced that, in all likelihood, there will be no trial in The Big One before Election Day. The justices agreed to take Trump’s appeal on whether he should enjoy absolute immunity for presidential acts but won’t hear oral arguments until April 22. Presumably, a decision won’t be issued for weeks or months after that, whereupon Trump’s legal team will likely seek further delay by peppering the trial court with additional pre-trial motions. Even if those are disposed of before November, the prospect of starting the trial so close to the election will appear unseemly to many. 

The Big One is likely to remain unresolved when polls open this fall. Liberals have spent the past 48 hours collectively losing their minds over the court’s timetable, unable to fathom how Trump’s plan to escape legal accountability could be working so well when his strategy has been plain for years. Law enforcement has been standing on train tracks since early 2021, watching a tiny light on a locomotive in the far, far distance grow ever larger, yet somehow still can’t get motivated to get out of the way.

I share their exasperation in the abstract. Justice delayed is justice denied. But whose fault is that delay?

The case that the court is deliberately slow-walking Trump’s coup prosecution starts with the fact that it could have moved faster than it has in hearing his appeal. It moves pretty fast with appeals in capital cases where it suspects dilatory legal tactics are being used to postpone execution, after all. Why not here?

Better yet, it could have declined to move at all.

Admittedly, it would be strange for SCOTUS to punt on a question as momentous as whether the man most likely to be elected president this year should enjoy absolute criminal immunity while in office, especially given how that man behaved during his first term. But absolute immunity is such a preposterous concept, lending itself to such outlandishly absurd hypotheticals, that the court might reasonably have concluded that it needn’t dignify the idea by taking it up. The D.C. Circuit’s ruling nuking Trump’s arguments could have been allowed to stand.

And if it had, this matter would already be back before the district court, full speed ahead toward trial.

If the Supreme Court were intent on deciding this matter, it could have expedited the process by scheduling oral arguments sooner than April 22. Or it could have granted special counsel Jack Smith’s motion in December to leapfrog the D.C. Circuit and have SCOTUS take the case from the district court directly. That would have accelerated the appellate timetable; instead, the court chose the slowest path available, denying Smith’s motion so that the circuit court would have to hear the matter and then agreeing to hear Trump’s appeal itself instead of deferring to the D.C. Circuit’s ruling.

“There’s a reason SCOTUS didn’t move faster,” you might counter. “Trump shouldn’t be above the law but he also shouldn’t be below it. By forcing Smith to follow the same appellate steps as other prosecutors, the court is making the point that Trump is entitled to the same procedures as any criminal defendant would be. If it expedited his appeal, it would be operating on a political timetable, not a legal one.”

It’s a fair point, but there are two wrinkles. The first is that the Supreme Court is expediting his appeal—somewhat. Just not to the extent that Smith and angry progressives would like.

Trump’s lawyers wanted SCOTUS to wait until its next term to hear his case, ensuring that the trial wouldn’t begin before the election. The court is moving at “warp speed” by scheduling oral arguments in April instead and preserving the faint chance of a verdict before November.

Why would it do that if it’s not following a timetable that’s at least somewhat “political”?

The answer to that question lies in the other wrinkle. Election Day isn’t just a political deadline in this matter, it’s a legal one.

Certainly, liberals are keen to have Trump tried and found guilty before ballots are cast because they expect to gain an electoral advantage from it. Polls routinely show that some meaningful bloc of American voters is willing to support a candidate who’s been accused of a crime but not a candidate who’s been convicted of one.

Even if a guilty verdict against Trump didn’t move votes, though, time is still of the essence in prosecuting him. In all of American history, he’s the only person who’s ever stood a plausible chance of gaining the legal power to quash federal criminal charges that are pending against him—and no one in either party doubts that he’ll use it. The stakes of this election are nothing less than whether one candidate will be granted a “get out of jail free” card by voters for the coup he plotted.

That’s what Nikki Haley meant when she speculated that the cases against him will never be heard if they’re not heard before Election Day. Trump isn’t any ol’ criminal defendant, and SCOTUS understands that. It’s willing to expedite the immunity hearing for the sake of holding him accountable to the law before voters make that impossible. Just … not so much as to maximize the chances of a trial actually happening before November.

Strangely, it reminds me of Joe Biden’s too-clever-by-half approach to arming Ukraine. For two years, the president has tried to find a middle ground between supplying weapons that are sophisticated and powerful enough to enable a vigorous Ukrainian defense but not so sophisticated and powerful as to turn the tide of battle and infuriate Russia, risking escalation. It’s a “half-pregnant” approach to armament. The same with the Supreme Court and Trump: It will accelerate his appeals enough to give Smith a fighting chance of taking the case to trial before Election Day but not so much as to ensure that the trial will take place before then, which would infuriate the right and draw accusations of “election interference.” It’s a “half-pregnant” approach to law.

So we’re agreed, then: The slow timetable is all SCOTUS’ fault, yes?

Not at all, actually.

The case against blaming the court for the pace of Trump’s coup prosecution begins with this juicy item in Politico from earlier this month. The president is miffed at his attorney general, it seems, and for more than one reason.

He’s mad that the special counsel who investigated him for retaining classified documents saw fit to dub him a “well-meaning, elderly man with a poor memory” who couldn’t recall when his beloved son, Beau, died. He’s also mad that the investigation into his other son, Hunter, has dragged on as long as it has and required the appointment of a second special counsel.

But that’s not all:

In recent weeks, President Biden has grumbled to aides and advisers that had [Attorney General Merrick] Garland moved sooner in his investigation into former President Donald Trump’s election interference, a trial may already be underway or even have concluded, according to two people granted anonymity to discuss private matters. That trial still could take place before the election and much of the delay is owed not to Garland but to deliberate resistance put up by the former president and his team.

Some of the delay is owed to legal tactics by Trump’s lawyers. But most of it belongs to Garland and his advisers at the Justice Department.

Last summer the Washington Post reported that the attorney general and his deputies dithered for more than a year after January 6 in pursuing a criminal case against Trump arising from his coup plot, even as evidence of the extent of his malfeasance became clearer over time. When the DOJ did finally begin investigating the Trump White House for its role in the plot, the FBI initially resisted identifying Trump himself as a focus of the investigation.

Not until November 18, 2022, two days after Trump announced his third presidential candidacy, did Garland appoint Jack Smith as special counsel in the matter. It would be another eight months before Smith obtained an indictment of Trump for it.

In blaming Garland, Joe Biden remembered something that SCOTUS-bashing progressives have conveniently forgotten: It may be true that the “American justice system” has dragged its feet in prosecuting Trump but it’s also true that the American justice system doesn’t let courts initiate prosecutions. Had the president’s Justice Department moved expeditiously after January 6 to hold Trump accountable for his plot, the case probably would have already been resolved.

Perhaps a conviction would have convinced Trump not to run for president again or, if not, at least would have wounded him mortally in the primary, producing a different Republican nominee. Either way, Democrats who are demagoguing the Supreme Court this week for not accelerating Trump’s trial are essentially showing up at a restaurant five minutes before it closes and being mad at the waitstaff that they’re eating at such a late hour.

But there’s a wrinkle to this argument too.

Garland and his team didn’t slow-walk the case against Trump because they’re lazy or disengaged, or because they were hoping to bring the matter to trial in the thick of the 2024 general election campaign for maximum political advantage. Per the Post, they slow-walked it because they didn’t want to put the country through a horrendous ordeal if they could avoid it and, if they had to, wanted to be really sure of their case when they did. You don’t prosecute a former president, particularly one who inspires fanatic devotion in millions, unless he all but dares you to and you’ve got the goods.

Initially, following years of perceived politicization, the DOJ’s institutional rehabilitation took precedence. “The Justice Department’s painstaking approach to investigating Trump can be traced to Garland’s desire to turn the page from missteps, bruising attacks, and allegations of partisanship in the department’s recent investigations of both Russia’s interference in the 2016 presidential election and Hillary Clinton’s use of a private email server,” the Post reported. The DOJ, in other words, didn’t want to antagonize Republican voters again after the intense backlashes inspired by the Steele dossier and the Mueller probe. Frankly, had Trump simply retired from politics and gone away, I suspect Garland would have let him slide on criminal charges in the interest of national “healing.”

But he wouldn’t go away. In fact, he ran for reelection explicitly on a program of “retribution” against the so-called “deep state”—one that would begin by returning him to the White House and granting him the legal power to place himself beyond accountability to the Justice Department. No doubt to the shock and horror of Merrick Garland, the base of Trump’s party is not only willing to grant him that power, they’re enthusiastic about it.

Declining to charge him for his coup plot thus would not, in fact, bring about “healing” and reconciliation, it turned out. Worse, the fact that Trump had suffered no consequences, legal or political, for that plot meant there was nothing deterring him from trying again at some point. So the DOJ did the only thing it could think to do, very belatedly charging him and hoping to gain a conviction before he returned to the White House and turned the department into his personal plaything.

And so if it’s not fair to blame the Supreme Court for the slow pace of prosecution, it seems not quite fair to blame Garland and the Justice Department either.

The reason blame is difficult to apportion in this matter is because the blame ultimately doesn’t lie with any institution. It lies with the corrupt voters of the Republican Party who continue to make Trump politically viable.

That’s an uncomfortable fact for institutions like SCOTUS and the DOJ. In a constitutional democracy, government institutions have dual loyalties—one to democracy, in which ultimate authority lies with the people, and one to the constitutional order, in which ultimate authority lies with the law and the civic norms that the law establishes. Typically the two authorities are sufficiently well-aligned that those dual loyalties aren’t pitted against each other.

But when the people are prepared to place an accused criminal in charge of federal law enforcement, they can’t be reconciled. So courts and prosecutors are left to face agonizing moral dilemmas for which they’re fundamentally unprepared. When choosing whether to seek criminal accountability for a political leader, should institutions be guided by the law or by the people? Does the answer depend on whether that leader, once elected, intends to continue to commit crimes? What if the people understand his criminal intentions and support him anyway?

There’s no “correct” way for the Supreme Court or the Justice Department to handle the timetable for Trump’s coup trial because a constitutional democracy isn’t supposed to select miscreants like him as political leaders. He has a persistent deranging effect on American institutions because he frequently pits the moral authority of his democratic support against the moral authority of the constitutional order, sometimes in explicit ways. Inevitably, institutions are forced to choose how to prioritize, and no matter which choice they make, they lose some legitimacy in the eyes of Americans who would have chosen differently.

This explains the theatrical outrage of liberals at SCOTUS’ timetable in the Trump matter, primed as those liberals are to believe (falsely) that our conservative court is in the tank for the Republican candidate.

All of this is perfect for Trump, of course. As American institutions become less legitimate, they become less capable of mustering popular support to resist his authoritarian designs when the time comes. Their failure in turn drives his political opponents to despair, leading them to consider extraordinary, and extraordinarily dubious, tactics in the name of thwarting him that he can exploit later. The mind reels, for instance, at how much hot rhetoric about court-packing we’ll be treated to next year from the left if Trump manages to delay a trial past Election Day and succeeds in being reelected president.

But it won’t be the Supreme Court’s fault. We have a virtuous civic tradition and an increasingly unvirtuous people, and something’s got to give. Until it does, the machinery of law enforcement can only muddle through unhappily, alienating everyone by turns.

In the end, in fact, perhaps it’s best that Trump isn’t tried before ballots are cast. Electing an accused criminal would be terrible but electing a convicted criminal and granting him the power to pardon himself would be unforgivable, shattering our national image. Better that we go on laboring under the illusion that the greatest country in the world would never stoop to such things rather than face the hard reality.