March 6, 2024

The Trumpian Consequences of Delaying Justice

Rather than rising to the moment, our courts seem to be succumbing to the uncertainty of it all.

Karen J. Greenberg
Donald Trump in a courtroom looking over his shoulder.
Donald Trump attends a pretrial hearing at Manhattan Criminal Court on February 15, 2024, in New York City. (Steven Hirsch / Getty Images)

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In 1868, British Prime Minister William Gladstone famously said, “Justice delayed is justice denied.” The phrase has often been repeated here in the United States, most famously by the Rev. Martin Luther King Jr., who echoed it in his 1963 “Letter from a Birmingham Jail”: “Justice too long delayed is justice denied.”

Sadly enough, justice delayed (and possibly denied) is once again front and center in America as we face the specter of Donald Trump and his insistence on eternally evading the reach of the law. What’s at stake isn’t just the fate of the former president, but an essential aspect of democracy.

The Georgia Case

Recently, the country was privy to attempts by Donald Trump’s lawyers to delay, if not completely derail, legal proceedings in a Georgia courtroom where Trump faces 13 felony counts for, in essence, trying to steal an election. In a hearing linked to that Georgia election interference case, originally scheduled to begin in August, a team of Trump defense attorneys attempted to remove prosecuting District Attorney Fani Willis from the case. The defense team has argued that Willis was not only having an affair with a man she had appointed as lead prosecutor in that case but had gained financially from doing so.

Should the judge indeed order her removed, the trial could be delayed until well past the November presidential election and might never take place at all. A new prosecutor could decide not to bring charges against Trump and his 14 codefendants, and even finding one could prove painfully difficult, given the size, complexity, and cost of the case. According to NBC News politics reporter Dareh Gregorian, it would be a “massive undertaking.” Not to mention that selecting a new prosecutor could spark all sorts of internal politics in the Georgia justice system. The “delay,” in other words, could well amount to an utter defeat. Originally scheduled to be decided before the 2024 presidential election, the trial would, at best, be postponed into the distant future and might never take place.

And that’s not the only case in which Trump’s team is deploying a strategy of delay in the service of strangling future legal proceedings.

The Jack Smith Federal Cases

Special counsel Jack Smith—appointed by Attorney General Merrick Garland in November 2022 after more than a year of persistent calls for an investigation into the January 6th insurrection—has mounted two federal criminal cases against Trump. One involves classified documents he took back to his Mar-a-Lago estate and refused to return. It’s now before a Florida federal court (and a Trump-appointed judge). The other is the January 6 election interference case taking place in Washington, D.C. Both have repeatedly succumbed to “assorted motions and maneuvers” of delay, as Mother Jones columnist David Corn aptly puts it.

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In truth, delay has been front and center in each case. Only recently, Trump’s lawyers petitioned the Supreme Court to put Smith’s potentially devastating election interference case on hold while the former president appealed a lower-court ruling that he doesn’t have presidential immunity from federal prosecution. He has now filed an appeal with the Supreme Court, asking the justices to determine whether he indeed does have immunity. This comes after the D.C. appellate court took over a month to issue its decision, just one more way in which timeliness has been left in the lurch at a moment when time should be of the essence.

In a second delaying maneuver in that case, the former president’s lawyers have asked the Supreme Court to pause proceedings until the trial of another January 6 defendant—subject to similar charges—concludes. Originally scheduled to begin on March 4th, the case has already been successfully stalled, though it could still, at least theoretically, begin in July, overlapping with the Republican National Convention or even during the fall election period itself.

In a similar fashion, Trump’s legal team has sought to push off Smith’s second case, the one involving those boxes of classified documents, some of which Trump so tellingly piled up in his Mar-a-Lago bathroom and shower. That case involves a 37-count indictment, including charges of willfully retaining national security documents, withholding and mishandling classified documents, and the purposeful obstruction of justice. Repeatedly, Trump’s lawyers have asked for delays in the case, including a request that Judge Aileen Cannon postpone the trial until after the November election. That Trump-appointed judge has indeed agreed to some delays but so far has kept the trial’s starting date at May 20th. In frustration at the slow pace of that case, Smith has called the Trump team’s persistent attempts at delay “relentless and misleading.” According to New York Times reporters Alan Feuer and Maggie Haberman, the trial date “will almost certainly be delayed”—the only question is how long the delay will be.

The New York State Case

As in the Georgia case, the fourth criminal indictment against the former president is taking place in state court. Manhattan District Attorney Alvin Bragg has indicted him in what’s commonly known as “the hush-money case.” What’s at stake, however, is not only the silencing of porn star Stormy Daniels with whom Trump had an affair just before the 2016 election. The indictment accuses him of “falsifying New York business records in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election.” As Bragg explained to WNYC’s Brian Lehrer, “The core is not money for sex. We would say it’s about conspiring to corrupt a presidential election and then lying in New York business records to cover it up. That’s the heart of the case as we’ve laid out in court filings.”

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Here, too, Trump sought a delay, alleging that showing up in court for the trial, as required by law, would interfere with his campaign for president. His appeals were, however, denied by the judge overseeing the case, which may indeed mean that it will be the first criminal case against him to actually take place. It’s now scheduled for March 25 in Manhattan.

Undermining Democracy

Delay matters when it comes to the 2024 election. As has become ever clearer, potential peril of a remarkable sort may lie ahead for our democracy, given Trump’s warnings about his plans, if reelected, to dismantle the civil service, pull out of NATO, deploy federal troops domestically, and gut the Department of Justice, as well, undoubtedly, as trying to pardon himself in the federal cases against him. And that’s just to begin down a list of the possible dangers.

But part of what’s now at stake, even without such an election outcome, is the viability and legitimacy of the judicial system itself. While the question of whether a president is above the law hovers over political discourse these days, there should be another major concern here—namely, the perception that our courts may not be up to the tasks assigned to them. Nowhere has this test been more strained than when it comes to the issue of timely justice, the right, that is, to a fair and speedy trial.

The notion of a timely trial, after all, has been part of the fabric of American justice since the founding of the legal system. The Sixth Amendment very specifically calls for the ensuring of “a speedy and public trial.” Later statutes passed by Congress—notably the 1974 Speedy Trial Act — offered additional support for the idea that justice must be dealt out in a timely fashion. Under that act, the disposition of a case is supposed to occur within 70 days, although numerous exceptions are allowed for extending that timeframe in the name of fair and just proceedings, among them the many pre-trial motions we’re now seeing in the Trump cases.

Guantánamo

It’s worth noting that the potential failure of the courts to operate in a timely fashion is anything but new to this Trump-era moment. Notably, in the major national security case of the 21st century, the courts failed dismally. Imagine this: more than 22 years after the nightmarish 9/11 attacks, this country has been unable to try the individuals, long in custody, who are accused of being co-conspirators in those attacks that killed thousands of Americans and took down the Twin Towers in New York, while devastating the Pentagon in Washington.

The 9/11 case has, in fact, been in a pretrial phase for nearly two decades now. In 2008, prosecutors for the military commissions set up at Guantánamo, Cuba, produced an initial indictment in the case. In 2009, Eric Holder, President Barack Obama’s attorney general, moved to transfer the case from the military commissions to federal court in Manhattan, a place where numerous international terrorism cases had been tried from the 1990s on. At the time, Holder’s Department of Justice issued a federal sealed indictment against the five 9/11 defendants.

Holder’s explanation spoke directly to the connection between timeliness and justice. He already rued the five years that had passed since those men were brought to Guantánamo. “I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The victims’ loved ones deserve the opportunity to see the alleged plotters of those attacks held accountable in court, an opportunity that has been too long delayed.”

Before the federal courts even had a chance to take up the case, however, public reaction ensured further obstacles to a federal trial. New York officials, family members of the victims, and congressional representatives insisted that security concerns made Holder’s proposal too dangerous. The pushback took the form of fears of violence on the streets of New York, along with anger that American rights and laws would be extended to terrorists. New York Mayor Mike Bloomberg and eventually Senator Chuck Schumer withdrew their support for Holder’s plan.

Sent back to Guantanamo in 2011, the 9/11 trial still has no set date. And because the defendants were tortured while in CIA custody—subjected to sleep deprivation, long periods of solitary confinement, waterboarding, and beatings—defense attorneys have persistently argued that the confessions of any of the defendants or tortured witnesses are invalid. In 2024, it’s hard to imagine the actual trial ever starting, though pre-trial hearings go on year after year after year.

Prior to the pandemic, jury selection for the trial was scheduled to begin in January 2021. Three years later, no trial date has yet been set and it may never be. Currently, the judge in the case has been asked to rule on an argument by one of the 9/11 case defense attorneys that, due to “outrageous government conduct”—that is, the torture of his client at a CIA “black site”—the case should be dismissed.

To make matters worse, after so many years, judges, prosecutors, and defense attorneys attached to the trial continue to resign or retire, including the presiding judge and, last month, one of the longest-serving prosecutors, both in the wake of the resignations of others in recent years, including a lead defense attorney and the chief prosecutor in the case.

What’s at Stake

While the military commissions, the federal courts, and the state courts each have different expectations of speed, they do share the mandate of upholding a fundamental element of democracy. In adjudicating guilt and punishment according to the laws of the land, they promise victims the right to a resolution and remedy and defendants the right to a fair trial. In a larger sense, they promise society security and safety, premised on the expectation that those who have broken the law will be punished in a timely fashion and serve as a deterrent to others who might seek to do the same.

In an address to the American Bar Association in August 1970, then-Supreme Court Chief Justice Warren Burger waxed eloquent about the foreseeable and devastating fallout that would follow a loss of trust in the courts. In his words, “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people.”

According to the former chief justice, delay was one of three things that “could destroy that confidence and do incalculable damage to society.” He concluded that “the delays in trials are often one of the gravest threats to individual rights. Both the accused and the public are entitled to a prompt trial.”

Unfortunately, so many years later, Donald Trump and his lawyers seem hard at work proving that the institutionalization of delay and the damage to the legitimacy of the court system that goes with it wasn’t restricted to those 9/11 cases. Quite the opposite, we now find ourselves in an era when the institutions designed to keep the United States a functioning democracy, including those courts, are at risk.

The 118th Congress is currently on course to be “one of the least productive in U.S. history.” In the name of partisanship, it has opted for stasis over passing bills. And thanks to this Congress—and the encroaching influence of Donald Trump –the executive branch is under duress as well. Witness the ludicrous congressional impeachment drives now underway against both President Joe Biden and Homeland Security Secretary Alejandro Mayorkas. So, too, the Supreme Court may be getting its lowest approval ratings ever, having reversed important rulings like Roe v. Wade and the Voting Rights Act.

Rather than rising to the moment, our courts seem to be succumbing to the uncertainty of it all, delaying justice again and again rather than demonstrating the power of our judicial system to operate responsibly. In the current context, should such failure continue, justice delayed could all too easily become democracy denied.

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Karen J. Greenberg

Karen J. Greenberg is director of the Center on National Security at Fordham Law School. She is the author of The Least Worst Place: Guantanamo's First 100 Days, Rogue Justice: The Making of the Security State, and most recently, Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump.

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