Trying multiple criminal cases against the leading Republican candidate for president during the run-up to an election threatens to tear apart an already divided country. Reports of threats of violence have already begun circulating, and I have argued in these pages that Joe Biden should pardon Donald Trump to spare the country that ordeal. There doesn’t seem to be any movement in that direction — plus a federal pardon would likely not obviate the Georgia case, which is brought under state law.
READ MORE from E. Donald Elliott: Biden Must Pardon Trump to Avert Civil War
But there is a way out: Trump and his co-defendants can make the potentially promising legal argument that waiting almost three years until the next presidential election season denies not only them but, more importantly, the public the right to a speedy trial as guaranteed by the Constitution. The events that form the basis of the charges against Trump and his co-defendants have been well known to all parties involved since early January 2021. Trump was impeached by the House on Jan. 13, 2021, for his role in inciting the riot at the Capitol. His infamous call to Georgia officials asking them to “find” him additional votes was reported in the press on Jan. 3, 2021. Yet Trump was not indicted for these events until August of 2023. (RELATED: Dems Rebut 2020 Rigging Accusations by Rigging 2024)
What have the prosecutors been doing throughout the intervening 30 months? One does not need to be paranoid to suspect that they have been waiting to schedule show trials for maximum impact on the upcoming primaries and the presidential elections in November 2024. That possibility certainly deserves investigation. Many have speculated about the effect of these cases on the elections; what they have overlooked is that delaying bringing the cases so as to influence the upcoming elections would be unconstitutional, regardless of whether it was intended to help or hurt Trump. The burden of proof would be on the government to justify the 30-month delay in seeking indictment. If the prosecutors fail to do so, the cases should be dismissed.
Admittedly, most speedy-trial claims focus on the time between indictment and trial, not the delay between the alleged crime and indictment. However, the current circumstances of charging a leading presidential candidate during the lead-up to an election with crimes based on well-publicized acts allegedly committed more than 2.5 years earlier are unique, and no precedent directly on point exists. Nevertheless, a close inspection of the complex caselaw shows that (1) an unjustified delay between the alleged crime and trial may be the basis for a constitutional violation, (2) inappropriate political motivations to delay bringing the cases are fatal to the prosecutions, and (3) the public’s interest in a speedy trial, not just fairness to the defendants, must be weighed in the balance.
The key precedent is the 1971 Supreme Court decision in United States v. Marion, which involved a three-year delay between the alleged crime and indictment. Although the case appears to do otherwise, closer inspection reveals that it supports the claim that an unjustified pre-indictment delay for political reasons violates the Constitution. All seven justices — the entire court at the time — agreed that the Constitution prohibits an unjustified delay in bringing charges; they just disagreed over which clause of the Constitution was the proper basis for this outcome.
By a slim margin of 4–3, the lead opinion for the court stated that the speedy-trial clause of the Sixth Amendment does not apply until indictment or some other form of “accusation.” That opinion was based on the language of the Sixth Amendment, which says that an “accused” must be given a speedy trial. Query whether impeachment by the House for the events of Jan. 6 qualifies as an “accusation.” That’s unsettled, but, in any event, even as a purely linguist matter, the court’s argument based on the wording of the Sixth Amendment is invalid because a defendant does eventually become “accused” after indictment following a long but unjustified delay.
More importantly, three justices in Marion concurred in the result, arguing in a strong opinion that the Sixth Amendment’s speedy-trial guarantee does apply to pre-indictment delays, based on historical precedents from England going back to the Magna Carta — from which we drew the guarantee of speedy trials. This is the kind of historical and policy argument that is likely to be persuasive to a majority of the current Supreme Court. (READ MORE: American Despotism)
Most importantly, even the four justices who joined the lead opinion in Marion agreed that the due-process clauses of the Fifth and 14th Amendments would prohibit a long delay by the prosecution if it knew of an alleged crime but waited to bring charges for an unjustified reason. Thus, the court agreed that the Constitution prohibits delaying charges for inappropriate reasons; it merely disagreed over the technical question of whether the due-process clause or the speedy-trial clause would be violated.
Accordingly, the majority opinion’s claim that the speedy-trial provisions of the Sixth Amendment do not apply is what we lawyers would call non-binding dicta: All seven justices agreed that one or another provision prohibits a prejudicial delay. In short, U.S. v. Marion marks a strong precedent by a unanimous Supreme Court that a harmful delay in bringing cases for an invalid reason — such as the desire to influence an upcoming election — would violate the Constitution.
Of course, the prosecutors may be able to justify the 30-month delay in these cases, but the burden of proof lies on them to justify waiting until election season to bring charges, not on the defendants to prove that the delays were politically motivated. Raising the constitutional argument should permit the defendants to turn the tables and investigate the motivations of the prosecutors.
Normally internal deliberations within a prosecutor’s office about the timing of bringing a case are privileged against disclosure. However, if Trump and his co-defendants raise a plausible argument that the monthslong delay in bringing criminal cases is unconstitutional — an argument that they clearly can make under U.S. v. Marion — they should be entitled to discovery into the internal deliberations within the prosecutors’ offices that led to the “coincidence” of holding off on bringing cases about well-known events until the next primary election season.
Trump keeps saying the timing of these cases is “election interference” — as in a recent interview with Hugh Hewitt, when he labeled them “campaign cases.” His lawyers ought to be permitted to investigate whether the timing of bringing the cases was politically motivated. If they prove that to be the case, the delay is unconstitutional, and the cases should be dismissed.
None of this is to justify the events of Jan. 6, which I have previously condemned in these pages, but instead to argue that the Constitution prohibits weaponizing criminal law in an attempt to influence the next election.
