Patterico's Pontifications

12/19/2023

Dan McLaughlin Is Wrong: There Is a Nonpolitical Case for Trying Trump Before Election Day

Filed under: General — Patterico @ 6:00 pm



Dan McLaughlin writes at NRO: There Is No Nonpolitical Case for Trying Trump before Election Day.

Well, bollocks! Of course there is. It’s a very obvious case. Anyone credibly charged with serious crimes, who can be brought to trial, should be brought to trial — unless an appropriate disposition can be worked out. Here, if Trump is elected president, he can put a stop to the trial. So there is a nonpolitical case for trying him before he can do that. Period, end of story. You’re welcome!

It takes Dan 1,500 words to get to this argument in a piece that is only 1,800 words long. And when he does, as we shall see, his arguments are, as the waiter said about the mint in the Meaning of Life, wafer-thin.

If there is a reason a defendant might not be triable after a certain date, for any reason, it is good (and non-political) for the justice system to try that defendant before that certain date. It’s just like when a statute of limitations is coming up. It’s good to file the charge before the statute of limitations runs. And no matter how many partisans line up to tell you that there is no rule of law justification for doing so, there is. So you can ignore the partisan yammering as so much background noise.

As I said, it takes Dan over 1,500 words to address this argument, and he devotes only two paragraphs (the final two) of his piece to this, the only argument that matters. Here is the entirety of what he has to say that is relevant to the challenge posed in his article’s title:

To the extent that there is any rule-of-law value, rather than political value, to be served by ensuring that Trump is tried before the election, it would be the argument that it may be impossible to try Trump after the election if he wins the election. After all, the federal cases could be shut down by Trump once he controls the machinery of the Justice Department, and Trump’s role as president-elect and sitting president would be a formidable barrier to trying him in state court. But even then, none of that matters if Trump loses the election; the argument is instead that we can’t allow the voters to place this man beyond the reach of these charges. Which is a hard case to make in public without disclosing your mistrust of those voters and your preference for having the decisions of a national electorate subordinated to the decisions of local juries in deep-blue cities. It is also a more dubious case to make when you’re discussing charges that are so enmeshed in long-standing political disputes and/or involve highly creative stretches of the law.

In either event, don’t pretend that we’re just discussing how to impartially apply the same law to Donald Trump that applies to any other defendant. We’re on uncharted ground, and these are uncharted arguments, all of which flow from the unique political circumstances. There’s no decision to try Trump before Election Day that isn’t a political decision.

Did you find that convincing? Me neither. Let me explain why. Let’s address what he says point by point:

“But even then, none of that matters if Trump loses the election; the argument is instead that we can’t allow the voters to place this man beyond the reach of these charges. Which is a hard case to make in public without disclosing your mistrust of those voters . . .”

OK. How about I openly disclose my mistrust of those voters? Does that make it easier for me to make the argument? OK, then.

” . . . and your preference for having the decisions of a national electorate subordinated to the decisions of local juries in deep-blue cities.”

Nope. BZZZZZT! I call foul. That’s not the question we were addressing, Dan. And what’s more, that’s stealing a base.

The issue is not whether the decisions of a national electorate should be “subordinated” to the decisions of juries. That framing suggests that one or the other must be subordinated to the other, and that’s not the question you said you were addressing, Dan. The question you said you were addressing is whether there is any argument based on the concept of the rule of law that the system should attempt to make sure Trump is tried at all, before the voters possibly put him in a position to make sure the trial never happens. And the answer is: yes, of course. If it can be done without violating the defendant’s constitutional rights, the trial should take place before the election, meaning both the jury and the national electorate can each have their say. That means that if the trial takes place before the election, neither the electorate’s decisions nor the jury’s decisions need be “subordinated” to the other. It’s a false choice.

Put another way: to suggest that calling for a trial, if possible, before the election “subordinates” the electorate’s decisions to those of a jury (a jury that Dan insists on insinuating is illegitimate because it is located in a city) is, as I say, to steal a base . . . because no such “subordination” need take place at all, as long as the trial happens before the election. The election can still go forward, and many people with a poor grasp of civics can and will still vote for this candidate. (Bringing everlasting shame to the country in the process.)

Yes, holding the trial before the election may interfere with the candidate’s campaigning, but that’s not an electorate problem. That’s a candidate problem and a GOP problem. If you don’t like having a candidate facing criminal charges during election season and you nevertheless nominate a candidate who is facing criminal charges during election season, well, it sucks to be you. I don’t feel sorry for you a bit. Nor should any rational person. You screwed up. You picked the wrong guy. Oops!

“It is also a more dubious case to make when you’re discussing charges that are so enmeshed in long-standing political disputes and/or involve highly creative stretches of the law.”

Well, the January 6 federal prosecution, which I think is the most weighty and important (if perhaps not the first to go to trial; that distinction might end up belonging to New York), is based on longstanding case law. I wrote a giant Substack about it and this was my conclusion:

Not only is the above section 371 case law firmly on DOJ’s side, but as we will see, so is the case law on section 241. Very firmly. And while there has been some debate about some of the concepts that appear in section 1512, as we will see, the result of that debate is not terribly likely to make a difference for Donald Trump.

It is section 1512 that you have heard so much about recently. That is likely headed to the Supreme Court on the definition of “corruptly”–but as I explained in my Substack, that matters little to Trump, because in the end, even if doubts are resolved in favor of the defendants, “all Jack Smith needs to show is that Donald Trump acted with the intent to procure the presidency unlawfully.” That does not seem like a terribly heavy lift.

The idea that DoJ is stretching the law in the Trump January 6 prosecution is, in my view, not a serious argument. As for New York, I have argued in The Dispatch that even that prosecution is not as far-fetched as it is portrayed by the conventional wisdom.

“In either event, don’t pretend that we’re just discussing how to impartially apply the same law to Donald Trump that applies to any other defendant.”

It’s not a pretense at all. Don’t pretend, Dan, that Trump is just any other defendant when no other defendant on Earth can order an end to his own trial if elected. Given that sickening reality, and the very real possibility that our crap electorate might vote for such a scoundrel, it treats him like any other defendant to take every legal step possible to ensure that he is brought to justice while the justice system still has the ability to do so.

Gazan Hospital Administrator Admits to Hamas War Crimes in Deliberately Putting Civilians at Harm

Filed under: General — JVW @ 12:34 pm



[guest post by JVW]

Not that it matters to those of us who knew this from the very beginning, or for those who will find no end of silly justifications to keep up with the fiction that Israel’s targeting of Gazan hospitals was illegitimate, but at least one key member of that evil death cult is now on record admitting the truth:

Ahmed al-Kahlout, the manager of the Kamal Adnan Hospital in northern Gaza, admitted during an interrogation with Israeli security forces that Hamas used the medical facilities to advance its military operations.

“I know 16 employees in the hospital — doctors, nurses, paramedics and clerks — who also have different positions in the Qassam Brigades,” Kahlout told Israel’s Shin Bet in a video clip released on Tuesday afternoon, referring to the military of Hamas. “They hide in hospitals because, for them, a hospital is a safe place.”

Kahlout, whose hospital is located in the Jabaliya neighborhood of northern Gaza, explained to Israeli security officials, “They [Hamas] won’t be targeted when they are inside a hospital.”

“That they will not be harmed when they are inside a hospital. Hamas has offices inside the hospitals. There are places for senior officials, they also brought a kidnapped soldier there. There is a designated place for interrogations, internal security, and special forces. Everyone has private phone lines inside the hospital,” Kahlout added.

Naturally the worldwide anti-Israel brigades will ignore this news or else deny the truth of the acknowledgement from Mr. Kahlout, who also copped to being a member of Hamas for over a decade and who has risen to a senior position within the terror organization. And even the more mainstream left as embodied by journalists from the New York Times and Washington Post, various academics and university administrators, and state department flunkies who reflexively take the side of Hamas over Israel are going to try to change the subject when this comes up with some dishonest formulation such as “Yes, we’ve always acknowledged that Hamas embeds itself among civilians, including the most vulnerable, but they are only forced to do this because of the efficient brutality of the IDF. And that is why we need an immediate ceasefire.” But the truth can’t be elided, and it’s absolutely indisputable now that it is Hamas who is the perpetrator of the worst sort of war crimes through their cowardly cynicism. May Israel at long last sever this snake at its head.

– JVW


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