Just like anyone else.
Donald Trump has always played to courts of public opinion. But now he faces judgment in courts of law, under very different rules. His critics and opponents celebrate this moment and the prosecutors responsible for it, believing that the criminal-justice system’s standards and procedures will emphatically limit Trump’s ability to lie, to demagogue, and, above all, to escape responsibility. Trump, it’s often said, enjoys no greater or lesser latitude than any other criminal defendant. One wonders if Trump himself truly understands what that entails.
But do Trump’s opponents truly understand it either?
The criminal-justice system is built from the ground up to protect defendants’ rights, even while seeking to punish them. The canonical account of our criminal-justice system, after all, is Blackstone’s: “For the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.” “The reason is,” John Adams added in 1770, “because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished.”
David A. Graham: The cases against Trump: A guide
Saying this is easy enough in the course of mundane criminal cases; it’s far harder in the most notorious cases. But Adams himself made his point in his era’s most notorious case: his defense of British soldiers on trial for the Boston Massacre. When British soldiers shot into a Boston crowd in 1770, they were prosecuted in a Massachusetts court, where their defense counsel was not an apologist for the crown, but the great patriot and future president. Adams secured the acquittals of six soldiers, and reduced liability for the other two. His work as a lawyer, and the judicial process in which it played out, is rightly celebrated as a formative moment for the American rule of law—recalled even centuries later, when political energy turbocharges calls to prosecute particular defendants. Even those who nominally celebrate Adams’s example too rarely give full weight to the fact that he was defending, in that moment, representatives of the powerful yet unpopular British crown, in the heart of patriotic Boston. Adams’s constitutional heroism came about in the protection of powerful figures who deserved to be loathed and perhaps even convicted and jailed.
Because of these values at the heart of the legal system, a serious set of laws, procedures, and norms exist that give defendant Trump every protection and benefit of the doubt. And those protections and benefits are exactly what will test the patience of the prosecution’s fans. Here are a few examples.
The rules of evidence and other constitutional or statutory protections may require the court to prevent jurors from seeing evidence or hearing testimony on facts that all reasonable observers know to be true, because the evidence or testimony was unconstitutionally obtained or unduly prejudicial, or for other reasons. Such evidentiary rulings could have a dramatic or even decisive effect on the version of facts before the jurors.
If the courts conclude that certain parts of the prosecutors’ cases cannot be brought before the jury, will we accept their rulings? We ought to. These rules exist to promote the legitimacy and accuracy of the criminal-justice system as a whole, and they do this by preventing the introduction of evidence that is ill-gotten or otherwise unlawful—even if the excluded evidence or testimony is, in fact, accurate and compelling. These rules have no Donald Trump Exception.
Second, the statutes that Special Counsel Jack Smith invokes against Trump may be construed more narrowly than the prosecution would like. Prosecutors are charging Trump with violating 18 U.S. Code § 371 (conspiracy “to defraud the United States”), 18 U.S.C. § 241 (conspiracy against “the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws”), and 18 U.S.C. § 1512 (“Whoever corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so”). Each of these statutes is written in extremely broad terms, and to the extent that they are being applied to prosecute Trump primarily for his words and political advocacy, the courts may hesitate to read them so broadly. Indeed, these are precisely the types of laws that the Supreme Court has lately been construing more narrowly in order to avoid constitutional problems. In McDonnell v. United States (2016), the Supreme Court unanimously ruled that the federal anti-corruption statute (18 U.S.C. § 201) needed to be construed narrowly, despite Virginia Governor Robert McDonnell’s plainly improper conduct, lest the law’s “standardless sweep” subject people to prison without “fair notice”; the courts cannot rely simply on prosecutorial discretion as protection against “overzealous prosecutors.” (As it happens, McDonnell’s prosecutor was Jack Smith.) The Supreme Court was echoing the approach that it took just a few years earlier in Skilling v. United States (2010)—another unanimous decision, written this time by Justice Ruth Bader Ginsburg, to narrow a federal statute on wire fraud and thus overturn the conviction of Enron’s Jeffrey Skilling.
The courts may well do the same here. They might echo Justice Robert Jackson’s landmark 1940 address, “The Federal Prosecutor.” The then–attorney general urged prosecutors to be very careful amid political pressure to prosecute those accused of “subversive activities”—such cases, he warned, “are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a ‘subversive activity.’”
If the courts continue that line of precedent, in a similarly cautious spirit of constitutional protection, will we accept their rulings as legitimate? Again, we ought to, for the sake of ensuring that “law enforcement” is truly a matter of law and not merely of force.
David A. Graham: This is going to be a mess
Finally, the prosecutors must convince jurors that Trump not only seems guilty, but also has been proved guilty beyond a reasonable doubt. And Trump need only convince one juror not to find him guilty. The burden is on the prosecution, not the defendant, to win a unanimous jury under this strict standard. As the Court reiterated just three years ago, every defendant enjoys a “constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury.”
None of this is offered to prejudge procedural rulings, legal interpretations, or jury verdicts yet to come. Judges and juries are not exempt from criticism; they make mistakes. (So do prosecutors.)
But at the outset of trials that will put the nation’s justice system to an unprecedented test, when Trump himself may take unfathomable steps to delegitimize the system and its participants, his opponents must reinforce the system’s legitimacy and dispel any reasonable doubts among the public that these prosecutions are political or otherwise illegitimate. They must do it now and throughout the process. Indeed, the only way to know that the process is actually working will be if Trump’s critics feel some anguish along the way.
In those moments, there will be immense temptation to repeat many of Trump’s own worst impulses: to attack judges’ motives, to delegitimize judges as political hacks, to demand that the courts lock him up. Among President Trump’s opponents, the overwhelming instinct will be to support every prosecution argument on every contested point—to be, effectively, the prosecution’s defense. But to support the legitimacy of the process, they will need to act with less prosecutorial zeal and more detached judgment, precisely to prove that such judgments are still possible.
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