A Fair Trial or a Fair Election — or Both?

Which is more important — protecting a fair trial or protecting a fair election? The special prosecutor pursuing President Trump wants to block the front runner for the Republican nomination from talking on the stump about the government’s disclosures in the pending trial. Mr. Trump, meanwhile, wants to be able to inform the voters about the particulars of the case against him. Do both — or only one or neither — of them have a point?Our own view is that, at least on this question, President Trump has the jump on his adversary. To see why, feature what would happen if the judge does nothing. At that point, the prosecutor faces an element of due process known as the Brady Rule. It arises from a landmark Supreme Court case called Brady v. Maryland, which obligates the government to turn over to the defense any evidence it’s holding that might help the defense’s case.Jack Smith, the special prosecutor, is chafing at that basic element of a fair trial. He is suggesting in court that he’s prepared to turn over all kinds of evidence, but only on a condition — namely, that the judge order President Trump and his camarilla to refrain from talking about it. Otherwise, he seems to suggest, he won’t turn over the Brady material. Were he to refuse to do that, though, the logical move would be to acquit Mr. Trump or dismiss the charges.Mr. Smith says he’s worried Mr. Trump would use the evidence to defend himself not only in court but in the court of public opinion — meaning, in the current circumstances, the presidential election. Mr. Smith reckons, our A.R. Hoffman reports, that the “discovery process is designed to ensure a fair process before the Court, not to provide the defendant an opportunity to improperly press his case in the court of public opinion.”Put another way, the prosecutor is taking the position that the proceeding in district court is more important than the proceeding that is the presidential election. In that proceeding, Mr. Trump is the leading contender for the Republican nomination against the likely Democratic nominee, President Biden, who, the Constitution ordains, is the individual to whom all federal prosecutors must be answerable.To us it looks as if Mr. Smith is in a corner here — in that he’s arguing in effect that the American public should be kept in the dark about evidence that could affect not only how the jury will see things (and the jury will get a look at the evidence) but how the voters would see things. Why would one want to keep the voters in the dark about any matter, but least-wise about the evidence of whether one of the candidates is a criminal?Mr. Smith is so intent on keeping the public in the dark that he wanted Judge Tanya Chutkan to decide the matter without even a hearing. Mr. Trump’s latest filing suggests he takes a more nuanced position, though he asserts his First Amendment rights. He concedes that some material might be too sensitive to be made public. Mr. Smith wants to restrict everything, though. Put another way, it’s quite a day when Donald Trump is the reasonable party in the discussion.The judge, in any event, has told the two sides to find time to address the matter in a hearing. She would be wise to deny Mr. Smith’s version of the protective order —and to enforce the rules requiring him to hand over the evidence on which he’s been sitting. Mr. Trump may be given to inflammatory language, but the American public writ large is smarter and fairer than any government official — so let them see the evidence.

A Fair Trial or a Fair Election — or Both?

A Fair Trial or a Fair Election — or Both?

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