Opinion | Why Judges in the Trump Jan. 6 Trial Need a Rocket Docket

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It’s now clear that if Donald Trump becomes the Republican nominee for president in 2024, he will likely still have criminal charges hanging over his head on Election Day. His criminal responsibility for the Jan. 6 riots at the Capitol may remain unsolved.

If this happens, voters will go to the polls without knowing whether one of the candidates in the current election is criminally responsible for overturning the last one and destroying the will of the voters.

Making a choice in such situations is unthinkable. As Richard Nixon put it, voters have a right to know if their candidate is a fraud. It can be avoided but it will require the judiciary to take some unusual steps. And its occurrence is determined by a relative handful of federal lawyers — including a number appointed by Mr. Trump himself.

Of the four criminal charges against Mr. Trump, the federal election interference case in Washington is now the most likely to go to trial before the 2024 presidential vote. The trial was rescheduled for March 4. Federal District Court Judge Tanya Chutka, who is overseeing the case, is doing an amazing job of keeping it on track. But legal developments out of her hands now threaten to derail that timeline: Expected pretrial appeals could push the trial date beyond the November election.

Mr. Trump has dismissed the case on several grounds, including claims of presidential immunity and a violation of the Double Jeopardy Clause. For most pretrial motions, if the motion is denied, the defendant must wait until after the conviction to refile the case.

But these two claims fall into a narrower category of claims that often subject a defendant to interlocutory appeals—in this case, pretrial appeals. Because these are claims of the constitutional right to immunity, a post-conviction appeal is not an adequate remedy. At that time, the right is already lost. A defendant is allowed to appeal before the government goes to trial.

As expected, if Judge Chutkan rejects these motions, Mr. Trump will have the right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. (I expect the appeal will focus mainly on the immunity question; the double jeopardy argument seems futile.) If he loses before the three judges there, he can ask the full court to review the decision. If this fails, he can ask the Supreme Court to investigate the matter. While all this is going on, the trial cannot continue.

Under normal circumstances, such an appeal process can easily take a year or more. An appeal by New Jersey Sen. Bob Mendez in his first case, claiming constitutional immunity under the speech or debate clause, has delayed his appeal for 18 months, although the Supreme Court has declined to take up the case.

In Trump’s case, such delays pushed back the hearing well past November. If Mr. Trump won the election, he would have been able to close the two federal indictments and possibly at least postpone the state indictments while in office.

This appears to be Mr. Trump’s primary defense strategy in criminal cases: delaying any trials until next November, when Mr. Trump hopes to be in a position to end his legal troubles.

Opting with Mr. Trump in the election and the criminal liability for January 6th threatens the rule of law. Nor is it entirely inescapable if the courts — and especially the judges who control the schedule — are willing to do what is necessary: ​​If they put the resolution of these petitions on the fast track, the case can go to trial on time.

Normally, the judicial and political calendars do not meet. We expect judges to ignore political considerations and campaign agendas when making decisions. But during the political crisis, the federal judiciary simply turned a blind eye. The political system must respond in such a way as to solve that problem in time. This is one of those times.

This is not a suggestion for the courts to act in a partisan manner. We do not know whether Mr. Trump’s immunity will be preserved. If it is rejected, we do not know what the outcome of the trial will be. The outcome of the legal process is not the main point. The bottom line is that the country needs to know that outcome before electing the next leader of the free world.

There is a prerequisite for this type of justice. During Watergate, appeals against President Nixon’s order to turn over the tapes subpoenaed by the White House were resolved in just two months—and that included pretrial arguments and a Supreme Court opinion. In the year In the 2000 presidential election, the court heard arguments between Bush and Gore on December 11, and the next day ordered the closure of the Florida vote count. Courts of appeals can often act by sending a restraining order when they need to.

This issue requires the same urgency. The first appeals here could easily be heard and decided within a few weeks. A full Court of Appeals hearing is discretionary, but if it allows such a hearing, it must be expeditious.

Under the rules of the District of Columbia Circuit, the losing party seeks Supreme Court review. If Mr. Trump loses the challenges, my own opinion is that the Supreme Court may not take the case. In past controversies, judges have shown little willingness to help Mr. Trump, and the last thing this embattled court needs now is to wade into another controversy. But if the Court feels it needs to weigh in on these new constitutional issues, it should act quickly.

There is no reason why the entire process, including Supreme Court review, cannot be completed by January. That allows the trial date to be postponed if the motions are denied.

There is no reason to worry that Mr. Trump is prejudiced against this relatively broken neck. He has vast financial and legal resources. The issues have already been fully discussed before Justice Chutkan. The cases are novel – because nothing like January 6 has ever happened before – but the questions are not extremely complex; We need a rocket docket, but this is not rocket science.

Some may argue that they have enough information about Mr. Trump’s actions and the voters on January 6. But a criminal trial is different. After the 2020 election, Mr. Trump and his allies made repeated claims of voter fraud and “rigged” elections. Those claims have uniformly failed when tested in adversarial courts, where actual evidence is required and witnesses testify under oath. In an age of misinformation and fake news, courts remain a forum where facts matter.

Some voters do not accept the verdict of a criminal court, regardless of the outcome. But for many, it can be a crucial data point when making their choice.

It is already impossible to have the trial completed before most presidential primaries. Super Tuesday, with more than a dozen primary elections in states and territories across the country, is March 5. Mr. Trump can seal the nomination when the hearings are over. But the trial can easily be completed before the Republican convention in July, so the representatives can really decide to appoint a criminal to lead the country (if the result).

A functioning democracy requires an informed electorate. It’s hard to imagine a more important piece of information for voters next November than that a candidate is criminally responsible for trying to overturn the last presidential election.

Although our legal system can resolve the case quickly while protecting the rights of the accused, the judiciary must do its part to protect democracy.

Randall D. Eliason is the former chief of the Fraud and Public Corruption Section of the United States Attorney’s Office for the District of Columbia and teaches white-collar criminal law at the George Washington University School of Law. He blogs Sidebarsblog.com.

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