United States v. Trump: What’s the Sudden Rush?

The thing that rivets our attention in the battle over the protective order against President Trump is the sudden urgency that the Biden administration attaches to the matter. That the government wants the order is understandable, given the kinds of things Mr. Trump has been saying. Jack Smith, though, filed for the order on Friday. Mr. Trump asked to reply by Thursday. The administration objected, and the judge gave him only until tonight.Why is the government suddenly in such an all-fired hurry? There are hundreds of January 6 defendants sitting in jail. Some have been waiting for a trial date for two years or more. The Justice Department is taking its sweet time. Yet now, when the defendant is an ex-president, time turns out to be of the essence. Wouldn’t the logic be for prosecutors to work though their backlog before getting to the indictment just handed up against Mr. Trump?It’s not, after all, as if the charges against Mr. Trump are that much more serious, if they are more serious at all, than those handed up against some of the protesters and conspirators languishing in jail and still awaiting trial. The longest stretch faced by any of them, Mr. Trump included, would be for alleged violations of the Corporate and Auditing Accountability, Responsibility, and Transparency Act of 2002, better known as Sarbanes-Oxley.The fact that the government is resorting to charging under Sarbanes-Oxley raises its own issues, signaling prosecutors’ willingness to use the law in ways its authors never intended. It reminds us of Lavrenti Beria’s line, “Show me the man, and I’ll show you the crime.” That temptation was a danger warned of by one of America’s greatest attorneys general, Robert Jackson, in his speech to federal prosecutors on the ethics of the profession. Which brings us back to the question of urgency. Mr. Trump’s lawyer, John Lauro, points out that “the Biden justice department has had three years to investigate this. To take President Trump to trial in 90 days, of course, is absurd.” He suggests prosecutors “want to go to trial so that instead of debating the issues against Joe Biden, President Trump is sitting in a courtroom.” In the plain language of newspaper work, he’s saying it’s political.Politico’s legal columnist, Renato Mariotti, suggests a more benign view — that Mr. Smith indicted Mr. Trump alone, despite the conspiracy charges, precisely “to streamline the case and move it to trial quickly.” The goal, Mr. Mariotti proffers, is to mark that “trying to overturn our constitutional system has consequences.” That would “depend on the trial happening before the November 2024 election.” Hence the all-fired nature of the urgency.Yet the charges handed up against Mr. Trump in respect of January 6 look like the settlings from the January 6 Committee convened by the House in the Pelosi era. That proceeding — in the Sun’s oft-expressed view — was a bright line violation of the constitutional prohibition on attainder. The House convened a hearing that was staffed with, according to the Times, 14 former federal prosecutors. The committee’s work was the very definition of the forbidden feature of attainder — trial by legislature. If Mr. Smith were committed to due process, he would have refused to use evidence adduced by such a process. Instead, he was in a rush and, in our view, poisoned his case. It raises fears that the government hopes to convict Mr. Trump in time to damage his chances in 2024 and leave the constitutional reckoning until after the damage is done. Let us just say, once again, that we carry no brief for Mr. Trump. The brief we carry is for due process. The hastiness bothers us. Mr. Smith, in the Financial Times’ telling, has “completed 100 triathlons, more than 20 half Ironmans and nine full Ironmans” — a series of long-distance races — “including the world championship.” Yet in his pursuit of Mr. Trump, we would suggest, Mr. Smith appears to be not in a marathon but a sprint.

United States v. Trump: What’s the Sudden Rush?

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