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Trump’s Trial Tribulations
Rarely have the legal waters been as murky as they are today in and around the Supreme Court. Former president Donald Trump is mired in four separate lawsuits that seek to attack his activities before, during, and after his presidency. The most explosive of these claims, brought by bulldog prosecutor Jack Smith, claims that Trump, by lies and false claims, sought to overturn the outcome of the November 2020 election through making knowingly false claims that he won the electoral battle in several key states like Georgia, Pennsylvania, and Wisconsin. Trump had claimed that he was entitled to absolute immunity from these charges because they were within the “outer perimeter” of his official duties, and that claim was rightly rejected in both the District Court and the Court of Appeals. His effort was the partisan one of seeking to obtain office, and not the official one of seeking to discharge any of the duties within that office.
Those two decisions left another difficult question as to when and how this trial should take place. Normally, the rules call for a standard procedure where the course and pace of the argument depend solely on the issues raised for trial. But Trump is now an active candidate for president of the United States, in the midst of a campaign that will begin with the Iowa caucus on January 15 and run nonstop thereafter. It is beyond contention that it is difficult, even for a front-runner, to run a nonstop campaign while having to deal with the constant work before and during trial of being a criminal defendant, and so the question is whether the justice system should make way for the political system—or whether the political system has to make accommodations so these trials can run their proper course.
Jack Smith has no doubt on this subject at all. In papers recently filed in the Supreme Court, he has taken the view that the ordinary appellate process available to most criminal defendants should be denied to Trump, such that the trial date of March 4, 2024, set by District Court Judge Tanya Chutkan can continue on schedule. In Smith’s view, extraordinary cases require extraordinary measures, and as this is being written the Supreme Court will consider on an expedited basis how this claim is to be regarded.
On the editorial side, Jesse Wegman of the New York Times has urged the Supreme Court to stop “Trump’s Delay Game” on the theory that if Trump turns out to be the Republican nominee, the public has a right to know whether he is a “convicted criminal.” In a literal sense that cannot be true. The most that could be known is that, after an exhaustive trial, he has been found guilty by a jury—including a hostile democratic jury in the District of Columbia whose very importance makes it sure that it will be the subject of an immediate appeal to the Circuit Court, which will in turn be subject to further review before the Supreme Court. Trump cannot be barred from running in the election even if convicted, and, as we enter these uncharted waters, it seems that if he can run, then he can also serve as president if victorious. Accordingly, no matter what the outcome of a criminal trial, any sentence would have to be suspended. The president “shall take care that the Laws be faithfully executed,” which can hardly be done from jail if he has to meet with his cabinet, negotiate with Congress, and fly across the globe. It seems painfully clear that as the Constitution is the “supreme law of the land,” its requirements must take precedence over any effort to keep him in prison for the commission of any state or federal offense. It may be as Jack Smith likes to say that no one is above the law, but it is equally clear that the law as it applies to the president of the United States is, both for better and worse, unique to him.
So just how should this uniqueness be reflected in making the implicit accommodations between the president’s freedom of action and the application of the criminal law to his conduct? One key element is impeachment, which begins in the House of Representatives. The House “shall have the sole power of impeachment.” This is followed by a trial in the Senate on some kind of criminal offense. There is no subject-matter limitation on the nature of the charges that can be brought by the House, and the proceedings before the Senate can result in punishment for, among others, a sitting president. But there is nothing that requires dismissal from office––the punishment could instead be, for example, a fine. Removal from office is imperative only in the subclass cases of “Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (emphasis added). But Trump was acquitted of all such criminal charges in the Senate, though the question is not whether that acquittal gives him some form of immunity. The better way to put the point is that the acquittal in this case has the same effect as in any other criminal proceeding arising out of those same events, which in this case have to be the charges for the same set of January 6, 2021, events for which Trump was impeached. Some generalized immunity for a president who is out of office is quite beside the point. But the double jeopardy challenge under the Fifth Amendment is far weightier stuff.
The Court of Appeals did not address the issue. But in her opinion, Judge Chutkan seeks to wiggle out from double jeopardy by insisting that a guilty verdict in an impeachment trial does not call for any kind of criminal punishment. Yet so long as the impeachment hearing is described in the Constitution as a criminal proceeding, then the trial does subject him to a punishment—fines included—for such offenses as treason and bribery. The situation is no different from the case of a conviction for securities fraud that is followed by barring someone from the industry for life or a term of years.
To be sure, the double jeopardy clause of the Fifth Amendment uses the phrase “be put twice in jeopardy of life, or limb,” but those last three words have to be read to include imprisonment or fines, for otherwise the clause offers no protection at all to the criminal defendant except in capital or corporal punishment. Nor does it matter that the impeachment proceedings charged Trump with insurrection—dubious in my view—while the Smith indictment does not. Here, the general principles of res judicata have to apply, so that double jeopardy applies to whatever charges could have been brought out of the same basic events of January 6, 2021. So, it does not matter that insurrection was not charged in the indictment when there was an acquittal in the impeachment trial. Otherwise, it will always pay for the prosecutor to vary the claims between the impeachment and the indictment, to secure two bites at the apple.
Wegman’s political point is every bit as weak. The obvious political rejoinder is that a final verdict in any case will not settle the matter for most of the public, which already holds strong beliefs that Trump is either a ranting madman who escapes his just deserts or a heroic figure who is subject to attacks from the swamp determined to swallow him up. The verdict would follow some highly dramatic events at or around these trials that are likely to further inflame public opinion on both sides. How these multiple legal actions piled on top of each other can lead to some future legitimation of a guilty verdict in the eyes (of a highly divided) public is quite beyond me.
What the entire proceedings could do, however, is make a hash out of the campaign if Trump’s rallies and public media appearances are pre-empted by criminal proceedings in four different jurisdictions. In the famous case of Clinton v. Jones (1997), Justice John Paul Stevens tried to split the baby by allowing a deposition, not a trial, while President Clinton was in office. The deposition led to claims that Clinton lied under oath, which brought on impeachment thereafter. The correct response in that case was to delay all actions against Clinton until he was out of office, to toll (postpone) the statute of limitations, and to preserve documents, because the political took precedence over the judicial. This case is obviously different: Trump is out of office and the charges are criminal, not civil. But the underlying concern that criminal proceedings could determine the outcome of an election is too high a price to pay. And if anyone asks—the same is true of any impeachment charges against President Biden. And all of this goes away if neither Trump nor Biden runs for president next year.
© 2023 by the Board of Trustees of Leland Stanford Junior University
Published in General
Respectfully, the statement that “[the immunity] claim was rightly rejected in both the District Court and the Court of Appeals. His effort was the partisan one of seeking to obtain office, and not the official one of seeking to discharge any of the duties within that office.” is not (IMO) dispositive. When your job includes that the laws be faithfully enforced, to characterize concerns of illegality in an election as “partisan” because your name was on the ballot and you lost is just too pat. A counterfactual would be a Trump win under equally suspicious circumstances. A Democrat-controlled House might well convene an impeachment investigation for failure to enforce election law. And under the circumstances of “late night” counting suspensions and pre-filled ballot “drops” such questions would be valid. And Trump’s failure to (or obstruction of) a legitimate investigation would be partisan — not the pursuit of the truth.
I keep wondering what today’s political landscape would look like if the Democrats hadn’t gone full Inspector Javert. I believe there is a not insignificant number of people who lean Trump because he has the right enemies.
I also think the last thing the Supreme Court wants is to be enmeshed in presidential politics. I will not be surprised when they schedule a hearing in October of 2024. Lots can happen between now and then.
Don’t they kinda “have to” address issues presented in a court term, within that term?
Do they? Maybe they do, but who’s going to tell them they can’t.
I suspect it’s more involved and lacking legal training that’s as far as I can go.
Well I’m just not aware of any case they’ve accepted starting from the “First Monday in October” that they don’t report their decision on by July or whatever it is.
Here’s another counterfactual. With Trump as the incumbent President not himself running for office in 2020, some other Republican candidate running to be Trump’s successor was putatively “robbed” of his election.*
It would then clearly be Trump’s job under the Constitution to ensure that the legitimately elected candidate became his successor.
Similarly, in 2016, it was Barack Obama’s job to make sure that the election that year came off properly. If Russia had been making some kind of meaningful effort to steal the election on Trump’s behalf, it would obviously have been Obama‘s job to prevent that.
And, in fact, the Obama administration looked into the question of Russian interference, and found that it didn’t amount to a hill of beans, so it didn’t do anything about it. Later, of course, when it was imperative to undermine the Trump Presidency, the Obama and the Democratic Party proceeded to fabulate “Russia collusion”.
* The possibility that a Republican candidate would steal the election from a Democrat is so improbable as to be absurd to include even in a hypothetical.
Just so. I don’t know whether Professor Epstein truly has thought through dismissing the immunity claim or simply thought that as there are other issues that might get to the same end that it was less contentious to simply dismiss this claim.