R emember when the Lawyer Left Legions lined up from Broadway to Guantanamo Bay to volunteer their services to imprisoned al-Qaeda terrorists? Ensuring a five-star due-process menu for mass-murderers whose objective was to return to the jihad, we were told, was the best way to promote “our values” globally. (With the globe on fire 20 years later, it’s probably best not to ask how that went.)
In more recent times, progressives have stayed domestic, railing about the “carceral state,” going to bat for violent criminals of color, and maintaining that the justice system is inherently racist. Wait a sec, you think: Isn’t that system run by the Lawyer Left and its top law-school graduates? Now, now, this is no time for such impertinence — not when we still have police departments to investigate!
Ever wondered how lawyers can have no apparent qualms about defending monstrous clients? How they can sleep at night after zealously defending terrorists, murderers, organized-crime buttons, rapists, and every other kind of sociopath? I’ve known and litigated against my share of such lawyers, grown fond of quite a few, and, as for the others, realized their role is vital even if it’s not for me. An old defense-lawyer friend, a talented guy who knew how to charm a jury, told me he was often asked how in good conscience he could put his impressive skill set in the service of such clients. He’d reach into his pocket, pull out one of those booklet copies of the Constitution, and proclaim, “That’s my client.”
I once prosecuted leaders of a street-gang cocaine business. At the very start, before we’d gotten five minutes in, the judge explained to the jury that a criminal trial, which we were about to begin, is “a search for the truth.” “Objection!” came a shrill voice from the defense table. Thereupon the judge, the other lawyers, and I were subjected to a sidebar civics lesson: a defense attorney’s impassioned lecture on how, far from a search for the truth, a criminal trial is the crucible in which we test the government’s adherence to the Bill of Rights. It affords the accused the presumption of innocence, she thundered, giving him every bounce of the ball, compelling the prosecutor to meet the daunting burden of proof beyond a reasonable doubt. So dedicated are we to these propositions, we proudly acquit even those we suspect may be guilty, since we’d prefer that over the possibility of railroading a potentially innocent man. Finally, pointing at moi, she admonished the judge that our courtroom trial was not “a search for the truth”; it was the Constitution in action, a sacred undertaking in which his sworn duty was to hold my feet to the fire.
A tad melodramatic? Sure . . . but to this day, I confess to a grudging admiration for it. It put some spring in the judge’s step, which made my job harder. But see, my job was supposed to be hard. Striking the right balance between aggressiveness and fairness, grasping that the presumption of innocence is serious business, something conscientious government lawyers must overcome with evidence, not by gaming the system — that’s the gig. That way, when a clever defense lawyer brandishes a pocket Constitution that he claims is his client, the prosecutor can justly reply, “Yeah, mine too.”
During the Pleistocene Epoch, when I was a young government lawyer, I was given to understand that these were eternal truths. Time-traveling to 2024, I’m left to ask: What would the media-Democratic complex be saying if Republican prosecutors had indicted a Democratic presidential candidate in four different jurisdictions, and were rushing to get him tried and (they hoped) convicted prior to Election Day?
Imagine the howls if the prosecutors were arguing that the four courts should schedule trials without any concern about whether the physical, psychological, and financial burdens of the multiple cases — in different districts hundreds of miles away from one another — would undermine the defendant’s ability to prepare for any one trial, let alone all of them.
Yet something very similar is happening right now in the real world, except that the prosecutors are Democrats and the defendant is former president Donald Trump, the presumptive Republican nominee to run against the incumbent Democratic president.
In Trump lawfare, anything goes.
A good example: Last week, I discussed an important proceeding in Florida. Judge Aileen Cannon was considering a new trial date for the Mar-a-Lago documents trial — one more realistic than the current May 20 date. Everyone knows May 20 is unrealistic with the case mired in litigation under CIPA (the Classified Information Procedures Act, the complexity of which invariably makes a slog of any matter it applies to). Biden Justice Department special counsel Jack Smith thus proposed July 8 as an alternative.
As Politico reports, Judge Cannon seemed to view Smith’s proposal as implausible given the breadth of discovery (mainly, mounds of classified discovery) to which the defense may still be entitled; the sheer number of pretrial motions and hearings that remain to be submitted, conducted, and ruled on; and the fact that the Mar-a-Lago documents prosecution is not the only case on the South Florida federal court’s docket.
The huge problem, about which prosecutors seem astonishingly apathetic, is that Trump is facing not just one criminal trial, but four of them.
Normally, this would be a first-order concern for a prosecutor. The government’s lawyer is responsible for ensuring that the defendant gets a fair trial. Though that may sound hokey, it is demanded by due process, which prosecutors are dutybound to uphold. But we don’t just rely on the honor of the government lawyers in this regard; self-interest factors in: Nothing is more likely to get a conviction reversed than denial of the defendant’s fair-trial rights. Prosecutors are supposed to ensure that the trial-court record can withstand the searching review of appellate courts. There is nothing normal about prosecutors in a hot panic to get a conviction by a certain date — specifically, Election Day.
If Trump had nothing else going on but the Florida case, a July 8 trial date would be challenging. There’s too much pretrial preparation that needs to do done. Most significant, in terms of the constitutional right to a fair trial, is the discovery that needs to be reviewed — a task complicated by the mandate that classified discovery may only be perused by government-approved defense lawyers in government-approved secure locations.
Of course, Trump has lots going on besides the Florida case. I’m not just referring to the little matter of the presumptive Republican nominee’s national presidential campaign. Among the array of criminal prosecutions pending against him, Trump faces a trial in Manhattan on March 25, about two weeks from now.
Any good litigator will tell you that, once you’re within two weeks of a significant trial, preparation leaves you with scant time for pressing matters in your own life, to say nothing of other cases with remote trial dates. The case brought by Manhattan district attorney Alvin Bragg may be absurd and abusive, but it is inarguably significant — Trump faces 34 felony counts that, statutorily speaking, amount to a century-plus of potential incarceration. According to the latest estimates, the trial will last for up to six weeks, with the court sitting for four days a week, taking Wednesdays off.
At the hearing, Smith’s underlings suggested to Cannon that this Manhattan trial was no excuse to delay the CIPA proceedings in Florida. After all, the prosecutors theorized, those proceedings could be scheduled for Wednesdays.
What?
During a criminal trial, non-trial weekdays and weekends are not downtime for the lawyers and defendants. To the contrary, that is the time they use to get ready for what’s ahead in the trial — scrutiny of the discovery, preparing to cross-examine government witnesses, research and writing of any relevant motions, preparing for the defense case and the defendant’s potential testimony, and so on. They are long days, not off days.
Moreover, even if there were time to shelve all that necessary work, in the middle of a complicated trial, so the lawyers and defendant could turn to preparation for another trial that is months away, there is the stubborn geographical fact of Manhattan’s being situated over 1,200 miles away from South Florida. There is no way everyone could get down to Florida for a full day’s work on Wednesdays, then be back in the New York courtroom ready to go on Thursday morning.
Remarkably, the attitude of Smith’s prosecutors was that this bind is Trump’s fault. It wasn’t that Smith knowingly timed his indictment in a way that made the bind inevitable. It wasn’t that Smith — who could have brought a straightforward obstruction case — elected to bring dozens of Espionage Act charges that have frozen the proceedings in the CIPA tundra. No, no: The blame here lay with the defendant, prosecutors rationalized, because Trump elected to have the same lawyers represent him in both Florida and Manhattan. The implication was that if Trump would just pony up more millions for more legal teams in response to the Democrats’ strategy of indicting him in multiple jurisdictions simultaneously, then one Trump team could handle proceedings down south from March through May, while Trump is on trial up north.
This is breathtaking on two counts.
As the prosecutors well know, absent a conflict of interest, a defendant is entitled to qualified counsel of his choice. What Smith is saying, however, is that this right, rooted in the Constitution, should be nullified because the Biden Justice Department wants Trump tried and convicted before Election Day — notwithstanding unambiguous Justice Department guidelines that forbid prosecutors from basing law-enforcement decisions on electoral considerations.
But it’s worse than that. Cannon quite properly schooled the prosecutors on the more fundamental point of constitutional law: Even if Trump had separate sets of lawyers who could work full time on two different cases (to say nothing of four), a defendant has a constitutional right to be present at all important proceedings in a criminal case. There is no way Trump could be present for classified proceedings that are critical in his Florida case if he is in Manhattan attending his criminal trial. Yet Smith would negate Trump’s constitutional right to be present and meaningfully participate in his defense in the Mar-a-Lago case — again, in service of President Biden’s campaign imperative that Trump be convicted on federal charges before Election Day.
To repeat, Smith intentionally created this bind. Bragg indicted Trump first, last spring, after which Judge Juan Merchan set the March 25, 2024, trial date. Only after that did Smith indict Trump on the Mar-a-Lago charges (now including two other defendants and 42 felony counts). The denial of Trump’s fair-trial rights is not a bug, it’s a feature.
It’s worse than that, actually — much worse. Bragg unsealed his Trump indictment on April 4, 2023. Smith thus waited until the putative Republican 2024 presidential candidate was locked into a March 2024 trial before pulling the trigger on his Mar-a-Lago indictment on July 8, 2023. He then pressured Judge Cannon to set a preposterously early trial date in a CIPA case — which is how we got the scheduled May 20, 2024, trial. Only after he had Trump locked in for a Florida trial likely to be of two-to-three months’ duration starting this spring did Smith finally indict Trump in the 2020 election-interference case (the so-called January 6 case) in Washington, D.C.
By the time the January 6 charges were unveiled on August 1, 2023, the Biden Justice Department had been investigating the Capitol riot for over 30 months. The evidence against Trump, such as it is, had been notorious for years. There had been an impeachment trial, hundreds of related criminal prosecutions, and extensive congressional investigations. Nevertheless, Smith waited until late summer 2023 to indict, knowing this would enable him to push for a trial smack in the middle of the 2024 campaign — in Trump-hostile Washington, to boot. And once Smith indicted the January 6 case, Bragg — an elected progressive Democrat — signaled that he would defer to the feds. Hence, Smith persuaded Judge Tanya Chutkan, an Obama appointee with a history of making derogatory statements about Trump, to set a trial date of March 4, 2024.
That date has now been dashed by Trump’s immunity appeal. Smith first pleaded with the Supreme Court to hear that appeal on an emergency basis by cutting the D.C. Circuit out, and then pleaded with the Supreme Court not to hear it at all once he got a favorable D.C. Circuit ruling — gamesmanship driven by the prosecutor’s futile desperation to preserve a March 4 trial. But let’s be clear: Smith’s original scheme was to have the Republican nominee continuously on trial — in court rather than out campaigning — for six consecutive months: from March through late May in Washington, and then from late May into August in Florida . . . after which, if all went as designed, it would be time to sentence Trump for Washington convictions and potentially have him in custody as he awaited sentence on Florida convictions, all as the November election loomed.
Now, with the immunity appeal disrupting the schedule, Smith has revised the plan so that Trump would be tethered to courtrooms for nine months. That is, Bragg would try Trump from late March into May, then Smith would try him in Florida from July into September, and then — with Smith having decided that DOJ’s rule about avoiding law-enforcement actions within two months of an election is inapplicable to Trump — Smith would try Trump in the January 6 case from mid-September right through the November election.
Let’s put aside that Smith’s objective is to keep the Republican nominee off the campaign trail, where Trump could contrast his energy with Biden’s senescence. The due-process question is: When exactly is Trump supposed to prepare for these trials — convictions in any one of which, at his age (77), could effectively result in a life sentence?
As far as the Biden Justice Department’s special counsel is concerned, that’s Trump’s problem. We’re not talking here about the case of a foreign terrorist, an urban street gang, or a migrant — the defendants who inspire in the Lawyer Left a Bill of Rights fervor that would make James Madison blush. We’re talking about Trump, so don’t be bothering the prosecutors with such trifles. They’ve got an election to prepare for!
If this were being done to a Democrat, or even to a common criminal, the righteous indignation of Democrats and journalists would be blaring and incessant. Jack Smith has decided, however, that with Trump in the dock, he can check out of the due-process business. What remains to be seen is whether the courts, too, are indifferent to the fair-trial rights they exist to uphold.