By Alan M. Dershowitz via The Daily Caller Foundation |September 8, 2023
The four criminal trials currently scheduled for former President Donald Trump are amongst the most significant and controversial trials in American history. It is imperative that they also be among the fairest trials in our history. Regardless of the results—acquittal, conviction, hung jury—the trials must be perceived as having been fair. The defendant must receive the benefit of all of his constitutional and statutory rights. Not only is Donald Trump on trial in these cases, but the American system of justice is on trial, not only in America but around the world.
The defendant is not only a former president; he is also the leading candidate to run against the incumbent president. Never before in our history has a leading presidential candidate been indicted, especially in the run-up to the election. If the trials themselves are unfair or even reasonably perceived to be unfair, our nation will be further divided and our standing in the world of democracies will be further damaged.
There is great desire among those who strongly oppose what Trump did in the past and what they believe he is likely to do in the future to “get” him. Many believe that the noble end of preventing Trump from being our next president justifies ignoble means, including stretching the Constitution and the law so as to assure his conviction. They believe that the reelection of President Trump would be more dangerous than compromising his constitutional rights.
That is a shortsighted view that endangers future generations of Americans.
At the moment, it appears as if Donald Trump will be denied his most fundamental constitutional right—to present his defenses to an unbiased jury. In this respect, there are two major constitutional issues: the timing of the trials and the location of the trials.
When it comes to the timing of Trump’s trials, the goal of the “get Trump” posse is to secure convictions and try to influence the November 2024 election. Even if these convictions were subsequently to be reversed on appeal, they will have served their intended purpose in influencing centrist voters, which is why they are prepared to rush to legal injustice—to serve what they view as “political” justice.
As of now, with the exception of the one trial that’s scheduled to begin next month, the rest are scheduled right in the middle of the primary season, beginning in March.
As a lawyer with 60 years of experience litigating and teaching about complex criminal cases, I have absolutely no doubt that a fair trial cannot be accomplished within this time frame.
Consider the Fulton County Rico prosecution. There are 19 defendants, some of whom have demanded a speedy trial as soon as October, while others have insisted on their right to prepare fully for what promises to be a many-months-long trial. The prosecutors insist on trying all the defendants together rather than allowing each of them or at least groups of them to be tried separately.
I am aware of no RICO trial involving multiple defendants, millions of documents, and extremely complex legal and factual issues having ever been fairly tried in such short a period of time.
The same is true of the D.C. case, where the judge insisted the public has a right to a speedy trial under the 6th Amendment. “There is a societal interest in providing a speedy trial separate from, and at times in opposition to, the accused,” Judge Tanya S. Chutkan said when setting the date.
This is nonsense: Only the defendant has the right to demand a speedy trial.
The interest of the government lies solely on providing the defendent a fair trial. If a speedy trial will result in an unfair trial, the Constitution demands a reasonable delay sufficient to assure every defendant the right to present the defense fully and effectively.
Convicting Trump in a speedy but unfair trial absolutely undermines the neutrality of our legal system. In the District of Columbia case, the government has already produced more than 12 million pages of discovery. In this haystack of material, there will be some exculpatory needles, and it will take time to find them and to investigate. It will certainly take many months of work to permit effective assistance of counsel, which is required by the Constitution. At this point, that important right is being denied to Donald Trump.
The second issue is the location of Trump’s trials. It is difficult enough to seek 12 objective and neutral jurors anywhere in our divided country, but three of the four trials are now scheduled for areas that are overwhelmingly anti-Trump.
In the District of Columbia, more than half of the potential jury pool voted against Trump. Many of those potential jurors hate him with a passion that would surely influence their deliberations. In New York, more than 70 percent of potential jurors voted against Trump, and many of them harbor a hatred that would make deliberations impossible. The numbers in Fulton County are somewhat similar to those in New York. Only the Florida federal trial is in a place where neutrality is possible.
Nor is it likely that biased jurors can be weeded out to the end perfect jury selection system. Accordingly, the juries in three of these cases will likely begin with a presumption of guilt rather than the constitutionally required presumption of innocence.
Changes of venue are permitted for good cause, and there is more than good cause here to do so in order to assure the former president a fair jury.
But as of now, Donald Trump is being denied his constitutional right to due process. The world is watching.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Price of Principle: Why Integrity Is Worth The Consequences. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast. This piece is republished from the Alan Dershowitz Newsletter.
