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Justice Delayed

[ Posted Monday, October 18th, 2021 – 16:12 UTC ]

Donald Trump made two types of legal news today. He filed suit against the House January 6th Select Committee in an attempt to block disclosure of White House records surrounding the attack on the U.S. Capitol, which will hinge on a very dubious "executive privilege" claim. But Trump is also sat down today for a video deposition in a case over Trump Tower guards' behavior towards a protest which happened when Trump first declared his bid for the presidency, back in 2015. These two separate cases bookend a real problem in America -- justice being delayed for so long it effectively becomes justice denied, just by running out the clock.

Think about it: Trump just had to sit for a deposition in a case six years after the actual event. The trial hasn't even been scheduled yet (a date is expected to be announced within a week or so). This one case has already spanned three presidencies: Barack Obama, Donald Trump himself, and Joe Biden. But this is a private case -- Trump was a private citizen when the protest happened, and he is a private citizen again. Trump's other legal move today was in relation to his actions while president -- meaning that in a very real way, the entire American public has an interest.

Trump's intent is obvious. He wants to run the clock out until Republicans reclaim control of the House of Representatives. That's all he has to do to win -- just delay everything until (at the earliest) after the next election. And that's only a little more than a year away.

Trump is an absolute master at using the legal machinery to endlessly avoid actual judgments or accountability. He is aided and abetted by the entire legal profession, which is set up mostly for the benefit of lawyers. Endless delays in any case equate directly to more billable hours for lawyers. They directly profit from delay. Read any legal page-turner from John Grisham if you're unsure on this concept in any way.

It's pretty easy to look at Congress and see how broken an institution it is when it comes to doing much of anything in a timely manner. It's painfully obvious, in fact. I comment about it all the time, personally, because it is so frustrating to behold. But there's a co-equal problem in another branch of our government, because Congress actually moves at lightning speed compared to the glacial pace of the judicial system.

Defenders of the system will point out that Trump did actually (finally) have to give a deposition. "The system may be slow, but it works!" they will claim. But this is just the first in a long string of cases Trump is facing, each and every one of which has already been delayed by Trump's legal team to the maximum extent possible.

And, as I mentioned, Trump plays the legal system like a virtuoso, when it comes to dragging things out for years. Here's one more example:

For example, three House committees first sought financial records from Trump and his family members in April 2019. The Supreme Court heard the ensuing legal challenge in May 2020, and decided against the president in June 2020 (more than 450 days after the subpoenas were first issued). A district court ordered some disclosures this August (another year later), and yet it still remains unclear whether anything much has been ponied up.

I fully admit I am no lawyer myself, nor do I have an in-depth knowledge of the legal system. But even an outsider can see things are pretty severely broken when all any sitting president has to do (as Trump proved, over and over again) is to run the clock out until he is out of office and whatever the case was actually about has long since become a moot point. This is politically unacceptable, or it should be at any rate.

The same article quoted above does offer a few possible routes for President Joe Biden to take on the January 6th documents to avoid the interminable delays:

The idea that justice delayed can be justice denied, of course, is nothing new -- Charles Dickens wrote a whole novel about it in 1852. But in this case, the White House has two tools to mitigate the problem without disrespect to the federal courts or the rule of law.

First, the judicial process doesn't have to slow. Churches seeking an injunction against Covid restrictions have been quick to obtain injunctive relief from the Supreme Court. Within weeks, landlords challenging the recent nationwide eviction moratorium issued by the Centers for Disease Control were able to get that measure struck down.

The Justice Department can seek expedited resolution of the constitutional question by seeking declaratory relief against the former president in the D.C. District Court, and then request "cert before judgment" to get high court review quickly on the bounds of Article II authority.

The Supreme Court's so-called shadow docket of expedited litigation has come in for considerable criticism, but in this case, a speedy legal process -- especially when delay itself threatens the rule of law -- is clearly warranted. The shadow docket hasn't always been controversial. No one, for example, complained when litigation from the 2009 Chrysler bankruptcy was considered on an expedited basis in the high court. So too here.

Of course, the Roberts Court might not play ball: No doubt, some smart law clerk can conjure a reason why realtors, but not the president, deserve speedy justice.

I would flip this last argument on its head. Why don't We The People deserve speedy justice? The issue at hand is a political one, and political judicial review really should happen in as speedy a fashion as possible. Why shouldn't We The People have the same rights as an accused criminal? The Sixth Amendment was written for their benefit, and reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

But in any court case, the accusers should also have the right to a speedy and public trial. Especially when a function of government (such as the sitting president attempting an insurrection against Congress and the Electoral College) is what is at stake.

Perhaps we even need a new constitutional amendment? Again, I am no lawyer, but I'd suggest the following text, to begin with:

"In all cases concerning the operation of government, the People shall enjoy the right to a speedy public trial, which shall take place within 45 days on the calendar. Appeals shall be adjudicated fully within 30 days after the initial ruling."

That seems reasonable to me. No endless motions and objections and appeals. A month and a half should be long enough for any court case, especially one that hinges solely on the interpretation of the Constitution. Another month for the appeals to run, and the nation would have an answer in a timely enough manner for it to affect the people involved while they are still in office. Not "when Congress changes hands" or "when the White House changes hands," but quickly enough to force elected officials to follow the law and act in a constitutional manner. Which is really the whole point.

Anything short of reaching that goal is nothing more than justice delayed for so long it is denied -- to the American people. Sitting presidents should be held accountable while they are still in office or else there will be absolutely nothing stopping them from completely ignoring Congress and even the courts themselves -- as Trump already got away with doing. Something very fundamental needs to change, so that this can never happen again, or else presidents will de facto be unaccountable to any law. No one is supposed to be above the law, but that really only works if the law moves fast enough for real accountability to take place in a timely (one might even say "speedy") manner.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


3 Comments on “Justice Delayed”

  1. [1] 
    John M from Ct. wrote:

    I appreciate the zeal, but an amendment like that seems inconceivable. The primary problem is, who is actually for it? As you say, the legal profession would not be, whether on the explicit principle of unaccelerated due process or on the implicit principle that fees accrue as a function of time in the court process.

    But how about our elected leaders? Would they really favor a deadline on "all cases concerning the operation of government", by which their bureaucratic or institutional interests might suffer a hasty and adverse ruling?

    And the People, as you so grandly capitalize them: would the American people really understand why a constitutional amendment to rapidly adjudge "all cases concerning the operation of government" is necessary, especially when the amendment declares that such a judgment is in their own interest - as a People, whatever the heck that means?

    And in the end, this entire screed is really aimed at Trump and his supporters among the People, and among the elected representatives of our government. No constitutional amendment is going to overcome the threat that you describe: that the legal process can easily and intrinsically be hijacked to delay and ultimately bury righteous lawsuits to bring a rogue president or rogue congressmen or rogue cabinet members or rogue state officials to constitutional justice. Quicker than an amendment would be a Democratic Congress and president that would appoint federal judges who pledged to treat "all cases concerning the operation of government" extremely expeditiously for the public good. If those good people can't even get the federal judiciary on board with the need for expedited trials of rogue public servants, how can we expect that judiciary to correctly interpret a fantasy amendment that, like any constitutional article, can be read any way a judge wants to read it?

  2. [2] 
    Elizabeth Miller wrote:

    Drive-by links are strictly prohibited around here, ya know.

  3. [3] 
    nypoet22 wrote:

    drive-by pies in the face are encouraged, however.

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