Washington Post associate editor implores D.C. Circuit to hurry up and get Trump in the dock
Ruth Marcus of the Washington Post complains that four weeks have passed since a panel of the D.C. Circuit heard oral argument on Donald Trump’s immunity claim, but still there has been no decision. She claims that this “delay” (actually, appeals courts rarely issue rulings within four weeks, as Marcus acknowledges) “borders on the unconscionable” because “it plays right into Trump’s hands.”
I didn’t know this was the standard for unconscionability in judicial proceedings.
The left’s approach to the lawfare being waged against Trump struggles to be consistent. On the one hand, we’re told that the former president must be treated like any other defendant, lest the rule of law be compromised. On the other hand, we’re told by Marcus (and others, including the special counsel) that Trump’s appeal should be treated differently because of who he is.
Marcus’ main concern is that Trump be tried before the November election. She argues that “voters are entitled to know before casting their ballots whether they are choosing a felon, especially one guilty of election interference.”
I’m not sure what the source of this “entitlement” is or why it overcomes Trump’ more well-established right to have his appeal considered with the normal amount of deliberation. Furthermore, although it’s true, in the abstract, that the question of Trump’s guilt or innocence is valuable information for voters, it’s not clear that a guilty verdict by a D.C. jury would be.
Indeed, I contend that given the political environment here in Washington, the opinion of a D.C. jury in a criminal case against Trump would have about as much informative value for voters as the judgment of New York City juries that Trump should pay E. Jean Carroll nearly $100 million for saying forcefully he didn’t rape Carroll back in the 1990s. In other words, virtually none.
It’s true that a Trump trial would produce evidence about his conduct after Election Day 2020. But voters already have plenty of information about this.
Congress considered Trump’s conduct during impeachment proceedings and then in half a dozen (or so) televised hearings by a House committee. In addition, Trump’s post Election Day conduct has been the subject of endless denunciations by the mainstream media and has been defended on the airwaves and on the internet by his supporters.
This year’s election will see even more debate about the subject. Voters for whom the issue matters can decide for themselves. They don’t need a jury full of anti-Trumpers to decide for them.
Marcus also worries that even if the trial takes place and judgment is rendered before the voting begins in earnest, “it is unsettling to imagine Trump unable to campaign because he is mired in a trial.” I agree. That’s why, if a trial of Trump can’t be completed before high campaign season, it probably should be postponed until after the election.
I should also point out that Marcus bases her concern about Trump not being able to campaign on her view that he will have to be present throughout the trial. She relies on the requirement in the Federal Rules of Criminal Procedure that a defendant “be present” at “every trial stage.” See Rule 43.
But Rule 43 contains a subsection discussing waiver of the right (or obligation) to be present throughout a trial. According to this review of the caselaw on waiver (including a case from the D.C. Circuit) by the anti-Trump website “Lawfare”:
It is unclear whether Trump has a “right” to take time off from a trial. If he nonetheless seeks the court’s leave to periodically or extensively absent himself, the court may, even as it acknowledges an obligation to attend, consider giving that permission if extraordinary cause is shown.
Maybe Bill will have more to say about this.
What I can say is that (1) Marcus’ analysis of the matter is incomplete and (2) there’s lots of potential for drama if Trump seeks permission to be absent from the trial or simply decides, without permission, not to show up for chunks of it. Maybe yet another ring will be added to this circus.
I’ve saved what might be the biggest problem with Marcus’ op-ed for last: She gives short shrift to the reasons why the D.C. Circuit panel should take whatever time it thinks it needs to decide Trump’s appeal. There are two main reasons.
First, although I agree with Marcus that the case against Trump’s immunity claim is very strong, the panel must be mindful of the implications of its decision for future presidents. Thus, even though the correct disposition of Trump’s claim seems clear, the judges should still take the time they need to write their opinion[s] very carefully.
Second, Trump is certain to seek Supreme Court review of an adverse ruling. Naturally, the judges will want to minimize the prospect that the Supreme Court grants review. Marcus should want this too because if the Supreme Court passes on the case — as it might, given the weakness of Trump’s immunity argument — the matter will proceed to trial sooner rather than later.
The best way to avoid Supreme Court review is for the panel to (1) write an airtight opinion of the court — one that gets Trump’s claim right and doesn’t have troubling implications for future disputes and (2) reach a unanimous ruling.
I suspect the two appeals court judges appointed by Joe Biden aren’t finding it difficult to come up with an opinion both can sign. But the panel also includes Karen Henderson, a respected non-liberal judge appointed by George H.W. Bush (and who served on the D.C. Circuit with John Roberts and Brett Kavanaugh). If she is leaning towards voting with the majority but is concerned about how the court’s opinion reads, it’s probably worth taking the time needed to bring her on board.
In any event, my view is that the case for the panel rushing to judgment isn’t compelling — except to those who are obsessed with making sure Donald Trump loses the election.