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Politics Foreign Affairs Culture Fellows Program

The Judiciary on Trial

Can the system rise above partisanship to produce results that will be considered fair by the majority of Americans, however reluctantly?

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Credit: rblfmr

We Americans have reached an amazing place politically: The Republican front-runner and very possibly the next president of the United States, Donald Trump, is campaigning while out on bail. And nobody in America seems to care much. Actually, Americans do sort of care, but not in any way that makes more sense than not caring. In the words of another pundit, “cheer, scream, or shrug... and sip a banana republic daiquiri.”

Americans, depending on their political beliefs, expect and would be satisfied for Trump to be either in a jail cell or the Oval Office as of January 2025. Painting with a broad brush, Republicans, in large, are convinced the charges against Trump are Third World-style political warfare and mean little. Democrats, meanwhile, see Trump as a Great Satan and view the charges as the last, best (after two impeachments and Mueller) hope for our democracy. Despite an uneventful presidency (the Supreme Court appointments were basically luck, and no LGBT concentration camps were opened or nuclear wars started) another four years of Trump will either save us or destroy us. Friends, there is little gray area out there, and even less room for honest discussion of the cases against the former president.

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Maybe it is not such a surprise, then, that 38 percent of us feel “exhaustion” over the possibility of a Biden-Trump rematch in 2024. Some 52 percent reportedly feel either sadness or fear, or both, over the prospect. There is one area where a significant share of each party finds common ground: the belief that the country is headed toward failure. Overall, 37 percent of registered voters say the problems are so bad that we are in danger of failing as a nation, according to the latest New York Times/Siena College poll. Some 56 percent of Republicans and Republican-leaning independents said we are in danger of such failure. Around 20 percent of Democrats and Democratic-leaning independents say they feel the same way.

In the face of all this, the challenge for the judicial system to preserve faith in our form of government comes in several ways.

For example, how clear and “obvious” are the charges in each instance? There is an ever-growing distrust in public institutions, or the electoral system as a whole—or in this specific case, whether the judicial system can respond to what some perceive as unfair charges against Donald Trump. And, make no mistake, each side sees a kind of unfairness in play: Many Republicans see the charges as attempts to drive Trump out of the election or cripple him as a candidate, while Democrats see the charges as the best of bad options, charging mere conspiracy when the real crime is the attempted overthrow of our constitutional system.

Prosecutors must make the charges plain and of the “make sense” type, with no “ambitious charging.” Everything must be able to be explained and pass the sniff test to all but the most hardened partisans, whether they agree or not. This will be especially challenging for the thought crimes, those claimed conspiracies, whether Trump is somehow still guilty of something even though he not only did not overthrow the government and reverse the election, but that he had no realistic pathway to doing so. Will justice recognize it all as theater?

People will remember the impeachments beta, the Mueller Report, which came close to charging Trump with obstruction of an investigation, but which actually cleared him and found no predicate crime. The defense will try and muddle the waters and leave the public with a sense that Trump did nothing wrong, but the system was set up to get him somehow (not a hard case to make in several of the total of 90-some counts.) The more prosecutorial creativity (example, use of RICO in Georgia) and the more attempts to squeeze events into legal boxes they don't quite fit in, the more challenge for the system to find a balance in explaining what is happening for the public to digest. Walking the public through the minefield of ambiguity over tedious classification regulations in the Mar-a-Lago case is an example. Anything that is seen as partisan (conspiracy to do this, conspiracy to do that) fails the democracy in a mighty way.

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Can the judicial system keep the language of each case neutral? The most obvious partisan tells come from the language used, calling January 6 an “insurrection” for example. The judicial system should stick itself to neutral language and press both sides to do the same, perhaps agreeing to some terminology. Falling into the media trap of weaponizing the language is a real danger. Trump must be prosecuted based on what he did, not who he is. Acts must be on-their-face criminal, or the whole thing will be seen as political, Trump convicted of something, anything, just because he’s Trump. It’s a big ask; already the judge in his J6 trial has called those events a “mob attack” on “the very foundation of our democracy” and branded Trump’s claim the 2020 election was stolen a conspiracy theory.

Venue is important, and the system must show the flexibility to move cases to neutral venues when possible. Trying a case in a place like Manhattan or Fulton County, Georgia, risks appearance of bias. The jury pool in both states swings decidedly Democrat. Yet even then, Salon decries the fact that a non-rigged jury might ruin the plan to convict Trump; "One MAGA juror can ruin it all," they write. Both venues feature a local Democratic prosecutor (Manhattan District Attorney Alvin Bragg, Georgia’s Fulton County District Attorney Fani Willis) in a one-party jurisdiction playing legal shenanigans to make a Federal crime appear local. Would the indictments even have come down elsewhere?

Lastly, can the judicial system be seen as “timely”? Most everyone agrees the judicial system is failing on timing. Prosecutors in one batch of the January 6 charges wanted the trial to start at the beginning of the new year, ridiculously early for a case that has already produced 11.5 million pages of discovery (“Even assuming we could begin reviewing the documents today, we would need to proceed at a pace of 99,762 pages per day to finish the government’s initial production by its proposed date for jury selection,” a Trump lawyer wrote. “That is the entirety of Tolstoy’s War and Peace, cover to cover, 78 times a day, every day, from now until jury selection.”)

Lawyers for Trump instead asked the judge to push back the proceeding until April 2026, nearly a year and a half after the 2024 election and some five years after the fact when Trump will either be immune one way or another as president, or irrelevant as a regular on Dancing with the Stars having failed at the polls. It still seemed unbalanced when the judge called for a March 2024 trial, right before Super Tuesday. The other cases against Trump face similar conflicting demands.

They are right, in a way, over at MSNBC—democracy is indeed on trial, but not in the way most people who say that mean. Instead, what is on trial is the effectiveness of our judicial system as it struggles to answer the cornerstone question here: Can the system rise above partisanship—even when partisan advantage is the intent of one side or both—to produce results that will be considered fair by the majority of Americans, however reluctantly? A “no” answer risks further shattering of public trust in our institutions, and further polarization of our politics, if not open violence.