Can a democracy put a presidential candidate on trial?
An election-season trial will be an act of Trump’s own making
Thanks to Donald Trump’s delay strategy — with an assist from the Supreme Court — the most important criminal trial in American history won’t happen until late summer at the earliest. That raises the question: is it... ok in a democracy to prosecute a presidential candidate during an election campaign?
As with so many things in law and democracy, the answer is — it depends!
It’s a careful balancing act that weighs the rights of the accused against the interests of the public. There are few hard lines or categorical rules. In fact, hard lines would be pretty dangerous. Imagine the chaos if any person accused of a crime could systematically avoid prosecution by just declaring themselves a candidate for office. Or, similarly, if there were no guardrails around election interference by prosecutors things could get messy, fast.
All that said — if you dig into the Constitution, federal law and the internal prosecution guidelines of the Department of Justice as applied to the facts of this particular case, the answer is a pretty categorical “yes.” A trial is appropriate.
A formula for judging trial timing vis-a-vis an election
In a new guide, “Prosecuting Political Leaders During an Election,” Kristy Parker, Conor Gaffney and Genevieve Nadeau look at the precedent for prosecuting candidates in the US along with relevant laws and prosecutorial standards on election interference.
Three big considerations:
Precedent clearly allows for election season trials in general. While Trump is the first former president to face trial, he wouldn’t be the first high-ranking political leader and candidate for office to do so. In 2008, sitting senator Ted Stevens was indicted and tried for corruption while running for re-election. He was convicted on all counts just eight days before Election Day. And Stevens is only one of many politicians to face a courtroom while running for office (including a certain Democratic Senator from New Jersey with an apparent taste for gold bars).
The public’s interest weighs heavily on whether a trial should occur before an election. Federal law and longstanding Supreme Court precedent illuminate several factors that help determine whether an election-season trial is warranted, including: 1. the public’s right to observe criminal proceedings, 2. the public interest in a speedy trial, 3. the nature and seriousness of the offense and 4, the defendant’s right to adequate time to prepare for trial. (Interestingly, there’s a fifth factor that the courts have been pretty clear does not apply: schedule conflicts. It is not considered a problem that a trial would force a candidate away from the campaign trail.)
Prosecutorial standards around election interference limit election-adjacent investigations and indictments, but not trials themselves. This is the big one. The DOJ’s internal bible, the Justice Manual (yes, it’s really called that) has a lot to say about mitigating the risk of election interference by prosecutors. But it is almost exclusively about things that prosecutors control, like public investigative steps and indictment decisions.
This makes sense! The DOJ has exclusive control over what cases are prosecuted and when. Announcing an investigation into a candidate weeks before an election has a huge potential to cause a splash and unfairly tilt an election without the candidate having a chance to defend him or herself.
But a trial is different.
Once a grand jury has returned an indictment, the case is under court control. And unlike an indictment or investigation, it’s a two-way street. The candidate has an opportunity to respond and, potentially, be exonerated before the election. Continuing an already-indicted case in election season can be necessary to resolve the splash prosecutors have already made. That’s why Ted Stevens, in 2008, specifically asked for the trial to take place before Election Day.
Plus, we live in a country with essentially never-ending election cycles — justice can’t be relegated to the windows between election years.
(I’m not a lawyer, but I would argue that deciding not to go forward with such a case on political grounds would be a pretty clear example of election interference.)
So how does the Trump trial stand up to this formula?
In the paper, the authors take all these considerations and distill them into three key questions:
Were there safeguards in place to prevent politicized prosecutions and has the DOJ respected them? (The answer is yes and yes.)
Is there any evidence of political interference in the case, such as inappropriate public or private commentary by officials or the prosecutors themselves? (Definitely not.)
Have courts or other independent arbiters indicated any concern with the timing or conduct of the prosecution? (They’ve expressed plenty of frustration at Trump’s delay strategy, but that’s it.)
When you put it in those terms, the answer is pretty obvious: Trump’s trial can (and should) take place anytime right up to Election Day.
But even more important to understand — the only reason we’re even having this conversation is because of Donald Trump’s deliberate actions to delay the trial as long as he can. (114 days and counting!) If he is frustrated that he’ll be in a courtroom in the middle of election season, he has only himself to blame.
Kristy Parker, one of the authors of the guide (and a former DOJ prosecutor):
The guardrails around election season trials are about upholding the rule of law and the Constitution. It is not some elaborate game that defendants can manipulate to their benefit. It’s obvious that the prosecution has worked to prevent the trial from falling too close to the election. It’s the other side that’s effectively pushing the proceedings towards November 5th.
The Biden Administration moves to stymie Schedule F
Yesterday, the Office of Personnel Management issued a rule intended to strengthen protections for civil servants and guard against future efforts to institute Schedule F — Donald Trump’s failed, last-minute ploy to purge the civil service.
This is an important and very positive development, write Erica Newland, Walter Shaub and William Ford:
What’s at stake is whether we live in a society characterized by the rule of law or the whims and rancor of partisans under the command of an authoritarian administration. Today, the Biden Administration took a stand for the former.
Read their full piece summarizing the rule.
Faith in elections
Earlier this week, Protect Democracy’s Chris Crawford and Emma Petty Addams of Mormon Women for Ethical Government had a conversation on Insights about what it’s like to be a person of faith in these trying times for pluralism, how faith communities are working to protect free & fair elections and — if you happen to be a person of faith — what resources are out there for you.
One snippet, from Emma:
In a time when fear of each other is high and loneliness is considered by many to be an epidemic, we have found that the antidote for anxiety is peaceful and effective action, especially when undertaken alongside others.
Read the whole conversation here. Chris and Emma will be speaking on a webinar (along with longtime conservative election lawyer Ben Ginsberg and Utah’s Lt. Governor Deidre Henderson) on faith & elections on April 11th. Tune in here.
(If you want bonus If you can keep it content like this in your inbox, click here).
What else we’re tracking:
In every backsliding democracy, there’s a pro-democracy movement — some succeed, some fail. What determines their fate? Whether they build a big-tent, cross-ideological coalition, find Benjamin Feldman and Jennifer McCoy for the Carnegie Endowment. “Broad-based, preelection coalitions have had significantly better success rates against backsliding leaders than oppositions who have remained divided.”
The Chinese government is joining the Russians in building a network of online election disinformation tools and tactics aimed at influencing U.S. politics (or just causing chaos), reports The New York Times.
The pro-democracy coalition has our work cut out for us. AP-NORC poll: “Three-quarters of the public say a democratically elected government is important to the country’s identity, but only 21% think democracy is the greatest system of government and 53% say democracy in the U.S. is working poorly.”
One of my favorite non-work podcasts, Tim Harford’s Cautionary Tales, has a special episode on some of the patterns of dictatorships around the world, including the danger of “salami tactics” and why autocracies are so prone to catastrophes.
No Labels will not be going forward with a plan to field a third-party ticket in the 2024 election. This lessens the risk of a chaotic, dangerous contingent election.
Judge Aileen Cannon rejected Donald Trump’s motion to have his classified documents charges dismissed under the Presidential Records Act, but that may not be as positive as it sounds. Ryan Goodman explains.
A Texas appeals court reversed itself and acquitted Crystal Mason, a Black mother of three who faced five years in prison for the crime of not knowing she was ineligible to vote while on supervised release for federal tax charges. But the damage, in terms of a chilling effect on minority voters’ willingness to vote, may already be done, writes Gregory Nolan.