Battle of Rights: Defendants Vanquish Voters
On January 9, the United States Court of Appeals for the District of Columbia Circuit heard oral arguments as to whether former President Trump is entitled to presidential immunity for acts in his official capacity concerning the Capitol riot on January 6, 2021. Prior to the argument, the three-judge panel had agreed to Special Counsel Jack Smith’s request for expedited briefing. After the panel granted this motion, the Supreme Court denied Smith’s petition for certiorari before judgment, thereby declining to bypass the D.C. Circuit. Four weeks after the argument, the D.C. Circuit ruled in Smith’s favor. Many leftists, who had predicted a quick defeat for Trump, were displeased. Liberal scholar Norman Ornstein, for instance, questioned the integrity of U.S. Circuit Judge Karen LeCraft Henderson. As the senior judge on the panel, Judge Henderson had the authority to assign the majority opinion to herself. She wound up joining a per curiam opinion, where no judge took authorship, that came out the way Ornstein desired. Ornstein, however, allowed partisanship to trump patience. Prior to the publication of the opinion, he insinuated, without a scintilla of evidence, that Judge Henderson was holding up the opinion to help Trump.
Another leftist lawyer, Ian Bassin, fired off a post on X that inspired this piece. “The DC Circuit’s delay is unconscionable,” he whined. Addressing the judges, he continued, “all Americans for whom you work are required to meet deadlines in our jobs all the time. Voters are entitled to know whether Trump is guilty or not before the election.” He then ordered, “Honor that deadline and quit the delay. Get it done.” This argument is absurd in so many ways, and it illustrates this lawyer’s fundamental misunderstanding of our justice system.
Let us first deal with the absurdity. The D.C. Circuit ruled shortly after Bassin’s rant in favor of Smith. Suppose that Trump appeals to the Supreme Court. Further suppose that the justices hear the case and rule against him by the end of April, which is highly unlikely. Fast forward two months to provide time for the parties to finish pretrial motions and discovery. Trump’s trial begins at the end of June and lasts two and a half months, a middle ground between the two and three months that the parties estimate. Further suppose that, in mid-September, the jury deliberates and is deadlocked. We have a hung jury. A stalemate. A draw. Trump is not convicted, but the government can retry him. But voters will not know if he is guilty or not before the election. What about Bassin’s deadline? Should the election be postponed so that Trump can be retried in order that a verdict might be reached? This postponement would, of course, be illegal. Our republic will survive, as this example evinces, if the election occurs prior to a verdict in this case.
Bassin does not comprehend the criminal justice system. Defendants have many rights: the right to counsel; the right to a trial by a fair and impartial jury; the right to call witnesses; the right to testify or not; the right to review the evidence used against them; and the list goes on. The Trump case presents novel and complex constitutional issues. The Supreme Court will wade into a legally foggy forest. Trump deserves thorough judicial review, as his freedom is at stake. He faces potentially the rest of his life in prison. Aside from a death sentence, there is no penalty harsher for a defendant. Bassin and his ideological kin, who want to hammer Trump no matter the cost, have no regard for procedure when it comes to the former president. Due process be damned. There is a deadline—concocted by Bassin—that Trump’s guilt must be determined prior to the election. Perhaps Bassin should direct his ire at Biden Attorney General Merrick Garland, who brought this case two and a half years after the events of January 6. Courts should not cave to this pitiful pressure campaign. The Framers wisely granted federal judges life tenure precisely to insulate them from the mob mentality of the Ornsteins and Bassins.
It is crucial to understand the goal of the leftist legal brigade. They seek to defeat Trump through a conviction before the election. As Bassin well knows, a conviction at the district court level is only the beginning of the story. Suppose Trump is convicted, and his conviction is reversed in 2025, long after the election. If this scenario occurs, a higher court will have ruled that Trump should not have been convicted. Why would voters not be just as entitled to that information as they would be to the verdict? The election is set and must proceed without delay. Criminal cases do not work that way. Never has a criminal case’s schedule been manipulated in an effort to jam it through prior to an election, but leftists are so desperate for a conviction that they will discard any hurdles to procure it. Courts must stand strong against these republic-ending tactics.
Late Friday night, we learned in even more stark detail how determined leftists are to have Trump imprisoned prior to the election. According to a POLITICO report, President Biden is furious with Smith and Garland. The president believes that they are not pursuing Trump fast enough, even though Smith sought the extraordinary relief of certiorari before judgment. The president believes that, had Garland and Smith done their jobs properly, at least one trial would have begun and might have concluded. If this report is true, there exists no doubt as to why Smith and Garland are doing their best to accelerate the pace of the prosecution. In a media interview, Garland recently echoed Smith’s call for a speedy trial.
The justices should not allow themselves to be used as puppets of President Biden and his political minions. After Trump seeks a stay of the D.C. Circuit’s ruling, which he did yesterday, Smith undoubtedly will seek expedited review by asking the Supreme Court to treat the stay request as a petition for certiorari. The justices did not fall for Smith’s shenanigans in December and, especially after this shocking report concerning the president’s desire to speed up the case, they should not give in to the current gamesmanship. The justices should allow Trump to seek en banc review with the DC Circuit, as he is requesting. There is no sound legal reason why the justices should hear Trump’s appeal during the current term. The argument that voters deserve to know the outcome of a trial is purely political, as a trial is only part of the broader legal picture. President Biden and his allies want a conviction of Trump that cannot be reviewed on appeal prior to the election. Smith knows this well, for his prized 2014 conviction of former Virginia Governor Bob McDonnell, a potential Republican presidential or vice presidential candidate in 2016, was reversed unanimously by the Supreme Court in June 2016.
The justices are the only ones who can put a stop to this repugnant politicization of the criminal justice system. They should deal with this case in the same manner with which they addressed that of former U.S. Representative Aaron Schock in 2018 and 2019. Schock alleged that the indictment against him for corruption implicated internal House rules and violated the separation of powers. He lost in the appellate court in May 2018. Justice Elena Kagan granted him a month-long extension to petition for certiorari in addition to the 90 days normally permitted. The Court ultimately denied his petition in February 2019. The case generated significant public interest in the district in which it was being tried, given the allegations of corruption during Schock’s service. Trump should receive the same treatment in terms of timing, meaning review by the en banc DC Circuit and the Supreme Court in the normal course. Such treatment would show the president and his allies that, while Trump is not above the law, the Supreme Court is above their republic-ending political games.