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.

26 Responses to “Dan McLaughlin Is Wrong: There Is a Nonpolitical Case for Trying Trump Before Election Day”

  1. So say I

    Patterico (0fd136)

  2. And yes, I saw about the Colorado case.

    I have not had time to read the decision.

    Seems like a big deal, but my guess is the Supreme Court reverses, and you’ll have a permanent stay in place by the New Year.

    Lotta big Trump stuff maybe going to the Court!

    I actually think they may just let the D.C. Circuit decide the January 6 immunity case and then refuse to hear it, since the D.C. Circuit will not rule in Trump’s favor and the Supremes would probably come down the same way. That’s my prediction. 7-2 dissent from refusal to hear the appeal of the D.C. Circuit. Don’t be shocked if they refuse to take it up quickly.

    Patterico (40db0e)

  3. There is, of course, the other consideration, that McLaughlin touches upon, but it really does not preclude trying him first, if at all possible.

    The other consideration is this: Suppose whether or not a trial is conducted, and whether or not he is convicted, he is nonetheless elected to the office. The People have a role in this thing, and having spoken, the government would do well to consider what the People have wrought in that case.

    Now, I would hope that Trump would be denied the election, or even that he’d be convicted of a crime that would bar him from office, but failing that I think that the capital-P People have the power here. I’d also hope that his time in office would be constrained by the Constitution but I’d oppose burning down the country to save it.

    Kevin M (ed969f)

  4. if perhaps not the first to go to trial; that distinction might end up belonging to New York

    God, I hope not, because he will beat the NY charges, perhaps being convicted of a few misdemeanors.

    Kevin M (ed969f)

  5. “all Jack Smith needs to show is that Donald Trump acted with the intent to procure the presidency unlawfully.”

    Indeed. Some of his minions may have a case that they were just fools, but honest fools. Trump, being the fool-master, has no such claim.

    Kevin M (ed969f)

  6. Even if Trump is elected, and even if some of his worst ideas are brought to fruition, the country will survive, somewhat wounded.

    The Republican Party, however, will be dead.

    Kevin M (ed969f)

  7. Has Mr. Former President Donald Trump, also known as the Defendant at certain places and times, himself offered any non-political reasons to delay his trials?

    nk (bb1548)

  8. Black robed oligarchs who put their political preferences above the law will be the end of our nation.

    NJRob (eb56c3)

  9. Hear, Hear! Everyone understands that the entire justice matter might be dismissed by a malodorous self pardon or an equally putrid 25A unable-to-discharge declaration followed by an equally nauseating pardon. This is when the matter has to be adjudicated and then the people can have their say. If they then want to elect a felon, then we will no longer have a moral people to support a Constitution.

    AJ_Liberty (bf6c80)

  10. @9 When were ignorant southern white trash moral?

    asset (d341eb)

  11. Patterico, you’ve been on fire lately. I appreciate it and agree with you.

    norcal (2c6486)

  12. I have to agree. From the viewpoint of justice it seems to me that the idea would be to have the trial(s) and have him judged guilty or innocent. In having the trial vs the election, there are 2 possibilities. If Trump loses, he could be tried now or later. If Trump wins, he can only be tried now. If the viewpoint of justice is to have the trial, for the person who is agnostic regarding Trump winning or losing, the obvious choice would be to try now, if it is can be done justly, because that is the only way to guarantee the trial happens. So the non-political case for trying Trump before election day is that it is more just.

    Nic (896fdf)

  13. @7:

    Ouch!

    Kevin M (ed969f)

  14. When were ignorant southern white trash moral?

    No more than other ignorant trash, of which this fine nation has plenty.

    For example, all of Bernie’s followers.

    Kevin M (ed969f)

  15. Why would the USSC rule quickly on the CO case but not for Trump’s “absolute immunity” argument?
    They’re both questionable arguments and could quickly and easily be decided.

    Paul Montagu (d52d7d)

  16. @14 I am offended! As a Bernie supporter now AOC I am NON-ignorant southern white trash and warhoop!

    asset (d341eb)

  17. Because of the trial venue, Trump has zero chance of avoiding conviction. Zero. It’s not a hypothetical, it’s a certainty. The venue voted more than 90% against Trump in 2020, and the jury pool will be drawn largely from those who have most to lose from a Trump presidency. Even in a fair venue, federal indictments have a 95% conviction rate. Sprinting to have Trump tried before the election (and, conveniently, all appeals decided after the election) is a sprint to use the legal system to meddle in the election. It’s political.

    lloyd (949cc2)

  18. As I said on the Weekend Open Thread, I expect the Supreme Court to issue a short, unsigned per curiam opinion staying the Colorado SC decision, followed by arguments heard in June. Since this will be a case of first impression, I don’t think the Court will reach the merits immediately. And it is sufficiently important that they need to have both parties fully brief the issues before they make such a landmark ruling.

    Rip Murdock (dee8eb)

  19. What’s political is Trump throwing his hat in early because it was obvious he was going to get indicted.

    Paul Montagu (d52d7d)

  20. All socialists are ignorant of economics, history and human behavior. At best, they are a few centuries early.

    Kevin M (ed969f)

  21. @18: I have no real argument with this. I think they’ll want to see how it plays out, too.

    Kevin M (ed969f)

  22. Because of the trial venue, Trump has zero chance of avoiding conviction.

    The Constitution demands he be tried in the District within which the offense was committed. That would be DC. It may suck from a political point of view, but that’s why we have appellate courts.

    The real problem though is not that the jury is unsympathetic, but that he’s fukking guilty.

    Kevin M (ed969f)

  23. @20 socialist are anybody you disagree with?

    asset (21a17d)

  24. socialist are anybody you disagree with?

    No, just people who think that the state should own, or control, the means of production. Lately they focus on control as that lets them still tax the “owners”

    Kevin M (ed969f)

  25. @24 who advocates the state owns the means of production? Lets them tax the owners. So now your against taxes.

    asset (21a17d)

  26. I am not against taxes, I am against taxes on ME.

    Kevin M (ed969f)


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