Ubiquitous
2023-12-21 21:30:59 UTC
In most U.S. District Courts, the trial date for a defendant who is not
incarcerated is typically many monthsand often easily over a yearfrom the
time of his or her initial appearance after indictment. Many trials are
resolved by plea agreements without ever having set a real trial date.
There is lip service to the constitutional notion of a Speedy Trial, and the
easily avoidable clock ticking under a statutory Speedy Trial framework, but
of the single-digit small percentage of cases that actually proceed to trial,
most wait 12-18 months (or more, depending on complexity) for their onset.
The scheduling of Former President Trumps criminal case in Washington, D.C.,
however, is shaping up to be quite different than almost any other
prosecution in history.
The guarantee of a Speedy Trial has its origins in the notion that the
government should not lock up individuals who are presumed innocent and have
them detained for months or years before given an opportunity to exonerate
themselves. It can be a Pyrrhic victory indeed for a defendant to serve a
couple of years in jail, to win at trial, and to learn that the maximum
penalty for the crime was less than what he already served in a pretrial
setting. And while there is a largely academic public right to a speedy
trial, the heart of the protection lies with the defendant.
Enter the machinations within U.S. v. Donald J. Trump, Criminal Action Number
23-257 (TSC). At the August scheduling conference for this insurrection-
without-charging-insurrection case, Jack Smith pushed for jury selection in
December and a trial in January. Trumps team asked for a highly improbable
mid-2026 start date. Judge Chutkan settled on March 4, 2024, the day before
the Super Tuesday primary, and a date markedly closer to Smiths high-speed
suggestion. Defense counsel noted that there were millions of pages of
discovery materials to sift through and that they could not be ready that
quickly, but the judge displayed no sympathy for that positionat least that
early into the caseand she announced an unwillingness to let a defendants
professional obligations (or political aspirations, in this case) serve as a
basis for delay. By contrast, in South Florida, Judge Aileen Cannon has taken
a more typical, incremental approach to the Mar-a-Lago documents case
scheduling. She is concerned that the process of sifting through classified
materials for use at trial (CIPA procedures) is going slowly so while she
set a trial date for next year, she has also suggested that the date is not
in stone. The parties will come back to court in March to give her a progress
report, and presumably at that point a final trial date will be set. Judge
Cannon has also suggested that it is entirely appropriate for her to consider
the calendars of all the parties when it comes to setting a trial dateand
from my 23 years in federal courts, that desire to set a collectively
acceptable trial date is the norm, not the exception.
Meanwhile, back in D.C., the defense raised the issue of presidential
immunity, which was shot down by the trial judge in her December 1st order.
Six days later, the defense appealed the ruling to the Court of Appeals for
the D.C. Circuit. Typically, the Court of Appeals ruling would not likely
come before early Marchs trial date. Consequently, the prosecutors did
something quite unusual, as they calculated the calendar of the appealthey
asked the Supreme Court to jump in and make a ruling without waiting for the
intermediate courts decision. The express reason for the petition, which was
granted this week, was to do everything possible to keep the March 4 trial
date.
In explaining the need for expedited SCOTUS involvement, DOJ wrote, Nothing
could be more vital to our democracy than that a President who abuses the
electoral system to remain in office is held accountable for criminal
conduct. Flowery and pejorative language aside, the quote does not explain
the obsessive need to try the case on Super Tuesday eve. More directly, the
government later explains its basis as, The public interest in a broad
sense, as well as the constitutional guarantee of a speedy trial. I, for
one, am not overly comfortable with DOJ prosecutors authoritatively declaring
the publics interest. But more fundamentally, we have to ask why in this
case, and really this case only, has Merick Garlands Special Counsel
continuously pushed for such an early trial date? Is the prosecutions keen
interest in a speedy trial one of principle or one of politics?
The underlying issue itself whether prosecution of a former President for
allegations during his presidency is constitutionally permissible (or whether
there is a way to carve up immunity between core responsibilities and
conduct essentially unrelated to holding office) is an interesting and
important one. SCOTUS is poised to make a historic, and apparently expedited,
decision. But lost in the procedural shuffle is a DOJ level of aggressionand
an apparently similar sentiment from the trial judge that is propelling a
complicated, unique, and historic prosecution along an unnecessarily fast
track. Whatever the verdict and any outcome on appeal, a rush to convict and
imprison a presidential candidate before the election will cause more
systemic damage to our criminal justice system than would displays of
fairness and patience.
--
Let's go Brandon!
incarcerated is typically many monthsand often easily over a yearfrom the
time of his or her initial appearance after indictment. Many trials are
resolved by plea agreements without ever having set a real trial date.
There is lip service to the constitutional notion of a Speedy Trial, and the
easily avoidable clock ticking under a statutory Speedy Trial framework, but
of the single-digit small percentage of cases that actually proceed to trial,
most wait 12-18 months (or more, depending on complexity) for their onset.
The scheduling of Former President Trumps criminal case in Washington, D.C.,
however, is shaping up to be quite different than almost any other
prosecution in history.
The guarantee of a Speedy Trial has its origins in the notion that the
government should not lock up individuals who are presumed innocent and have
them detained for months or years before given an opportunity to exonerate
themselves. It can be a Pyrrhic victory indeed for a defendant to serve a
couple of years in jail, to win at trial, and to learn that the maximum
penalty for the crime was less than what he already served in a pretrial
setting. And while there is a largely academic public right to a speedy
trial, the heart of the protection lies with the defendant.
Enter the machinations within U.S. v. Donald J. Trump, Criminal Action Number
23-257 (TSC). At the August scheduling conference for this insurrection-
without-charging-insurrection case, Jack Smith pushed for jury selection in
December and a trial in January. Trumps team asked for a highly improbable
mid-2026 start date. Judge Chutkan settled on March 4, 2024, the day before
the Super Tuesday primary, and a date markedly closer to Smiths high-speed
suggestion. Defense counsel noted that there were millions of pages of
discovery materials to sift through and that they could not be ready that
quickly, but the judge displayed no sympathy for that positionat least that
early into the caseand she announced an unwillingness to let a defendants
professional obligations (or political aspirations, in this case) serve as a
basis for delay. By contrast, in South Florida, Judge Aileen Cannon has taken
a more typical, incremental approach to the Mar-a-Lago documents case
scheduling. She is concerned that the process of sifting through classified
materials for use at trial (CIPA procedures) is going slowly so while she
set a trial date for next year, she has also suggested that the date is not
in stone. The parties will come back to court in March to give her a progress
report, and presumably at that point a final trial date will be set. Judge
Cannon has also suggested that it is entirely appropriate for her to consider
the calendars of all the parties when it comes to setting a trial dateand
from my 23 years in federal courts, that desire to set a collectively
acceptable trial date is the norm, not the exception.
Meanwhile, back in D.C., the defense raised the issue of presidential
immunity, which was shot down by the trial judge in her December 1st order.
Six days later, the defense appealed the ruling to the Court of Appeals for
the D.C. Circuit. Typically, the Court of Appeals ruling would not likely
come before early Marchs trial date. Consequently, the prosecutors did
something quite unusual, as they calculated the calendar of the appealthey
asked the Supreme Court to jump in and make a ruling without waiting for the
intermediate courts decision. The express reason for the petition, which was
granted this week, was to do everything possible to keep the March 4 trial
date.
In explaining the need for expedited SCOTUS involvement, DOJ wrote, Nothing
could be more vital to our democracy than that a President who abuses the
electoral system to remain in office is held accountable for criminal
conduct. Flowery and pejorative language aside, the quote does not explain
the obsessive need to try the case on Super Tuesday eve. More directly, the
government later explains its basis as, The public interest in a broad
sense, as well as the constitutional guarantee of a speedy trial. I, for
one, am not overly comfortable with DOJ prosecutors authoritatively declaring
the publics interest. But more fundamentally, we have to ask why in this
case, and really this case only, has Merick Garlands Special Counsel
continuously pushed for such an early trial date? Is the prosecutions keen
interest in a speedy trial one of principle or one of politics?
The underlying issue itself whether prosecution of a former President for
allegations during his presidency is constitutionally permissible (or whether
there is a way to carve up immunity between core responsibilities and
conduct essentially unrelated to holding office) is an interesting and
important one. SCOTUS is poised to make a historic, and apparently expedited,
decision. But lost in the procedural shuffle is a DOJ level of aggressionand
an apparently similar sentiment from the trial judge that is propelling a
complicated, unique, and historic prosecution along an unnecessarily fast
track. Whatever the verdict and any outcome on appeal, a rush to convict and
imprison a presidential candidate before the election will cause more
systemic damage to our criminal justice system than would displays of
fairness and patience.
--
Let's go Brandon!