The United States of Lawfare The Supreme Court’s unanimous ruling about ballot access is a major blow against distorting the legal system for partisan gain But there are big battles yet to come Charles Lipson
Troubling as President Biden’s cognitive problems are, his legal issues are dwarfed by those facing former President Trump. The former president’s supporters and many independent voters see them a “lawfare,” the tendentious use of the legal system for political gain. His opponents see them as the even-handed rule of law.
What is striking about the cases pending against Trump is how they all came together in the midst of a presidential campaign. Surprise, surprise. Of course, the alleged crimes and civil violations occurred years ago.
The state-level cases in Georgia and New York were brought by politically-ambitious District Attorneys who campaigned explicitly on platforms of “getting Trump.” Federal charges, brought by Special Counsel Jack Smith, have the same taint. Smith has told federal courts that they need to rush their decisions on crucial procedural issues because he needs to bring Trump to trial very quickly. By trying Trump before the election, Smith might be able to obtain a criminal conviction that could tip the electoral balance come November.
What has put the federal cases against Trump on temporary hold are questions about the immunity normally accorded to presidents. The US Supreme Court has agreed to decide that issue and will likely rule before mid-summer.
The problem with presidential immunity is where to draw the line. An obvious one is that it should apply only to “official acts.” This still leaves questions about official acts like, say, the bombing of a suspected terrorist hideout in Afghanistan where some American citizens could be harmed. What about the victims of environment pollution purportedly caused through executive orders? If presidential immunity were drawn too narrowly or eliminated entirely, every president would face thousands of lawsuits.
Former President Trump claims he is immune from some of Jack Smith’s charges, especially those related to the events of January 6. While Republicans tend to describe the day as being somewhere between a riot and a peaceful protest, Democrats are clear in their belief that the storming of the Capitol was an insurrection. If backed in a court of law, Trump could be excluded from election under the 13th Amendment.
Trump has never been charged with that crime, much less convicted of it. That minor hitch hasn’t stopped some Democrats from attempting to bump him off the ballot. The latest filing was from a Chicago judge who deals mostly with traffic violations. The most detailed decision was a 4-3 split against Trump by the Colorado Supreme Court, which was today overturned by the Supreme Court.
If these state-level decisions stand and prevent Trump from appearing on some blue state ballots, then red states will surely find reasons to exclude Democratic candidates, making the Supreme Court’s ruling a welcome relief.
Trump’s supporters are understandably appalled, as are independents concerned about the weaponisation of the judicial system. They realise a future Republican president could do the same thing against Democrats. The best evidence that voters are truly concerned is that Trump’s poll numbers have actually increased because of these cases. What’s uncertain is whether that would change if he is convicted of a felony.
The timing of Trump’s multiple trials is yet another problem. His adversaries are determined to hold them between now and November. Their best outcome would be convictions. The second best would be to keep Trump tied up in court, preventing him from campaigning.
Here the public has a clear, overriding interest. The selection of the next president is the single most important act of a free people in a constitutional democracy. That should take precedence. The public’s interest in free and fair trials is almost as important, but that interest is not harmed by delaying trials for a few months. In fact, the public’s confidence in the fairness of the judicial system would be strengthened.
This concern about public confidence and non-interference in elections is why the Department of Justice has a rule about not bringing actions, such as indictments, close to an election. It is known as the “60 day” rule, even though it doesn’t specify a number of days. Nor does it specifically mention trials that might start within that window. But the same principle should apply.
That principle is easy to state: the Department of Justice should not undertake actions that interfere in elections. That principle is what former FBI director James Comey violated when he held a press conference during election season, detailing Hillary Clinton’s alleged (but uncharged) crimes. His egregious interference may have affected the election outcome.
The DoJ should not repeat that mistake. That’s why Attorney General Merrick Garland should delay any federal trials of Donald Trump until mid-November or later.
Garland’s boss, Joe Biden, would be furious. So would Democratic Party activists, the mainstream media, and the lawfare crowd. The Attorney General should ignore them. Their goals are political. They want Trump’s trials to interfere with the election.
Garland should rise above that pressure. He should have only two goals: the unbiased administration of justice and the Department’s reputation for pursuing it.
Comments are closed.
“Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate.” So Tocqueville wrote 200 years ago in what is still the greatest book about both America and democracy. His observation remains as true today as it was in the 1830s. It applies to the likely nominees of both political parties.
Most of attention has been devoted, quite rightly, to the mountain of legal problems facing former President Trump. But it is worth noting that the current occupant of the White House faces legal problems of his own.
Joe Biden has been shown to possess classified documents without authorization and store them in insecure places, like his garage. The allegations were laid out in detail by Special Counsel Robert Hur, who declined to prosecute because President Biden was “elderly” and “forgetful” : hardly the sort of descriptors a presidental candidate would want to promote.