Today in Unraveling the
Rule of Law
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In the Manhattan district attorney’s case, the only one
of the four criminal prosecutions brought against Trump to make it to trial and
ending in a conviction, there was news today. But it wasn’t the news we
expected. Judge Juan Merchan was scheduled to deliver a long-delayed ruling on
whether the Supreme Court’s July 1 presidential immunity decision impacted the
convictions in the New York state case. Trump’s lawyers argued that some of the
evidence used to convict him was barred by that decision. But that’s not at all
clear, nor was it clear that case applied to a state proceeding. No one knew
for sure how the Judge was going to rule.
We didn’t get a ruling from Judge Merchan on that issue
today, though. Instead, Trump and the district attorney’s office communicated a
request to the Judge to pause activity in the case, including ruling on pending
motions and sentencing, over the weekend. The DA’s office, much like Jack Smith
in his filing in the Jan. 6 case, characterized the situation as “unprecedented
circumstances” and said it needed time to assess the developments and balance
the different equities involved before moving ahead.
The Judge agreed and entered a temporary stay, granting
the district attorney’s rest that it have until November 19 to file its
assessment of “appropriate steps going forward” with the court by 10 a.m.
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Trump’s lawyers added their view: that the appropriate
outcome was “eventual dismissal of the case in the interests of justice, under
the US Supreme Court’s decision in Trump v. United States and the Presidential
Transition Act.” Trump’s lawyers suggested that any other outcome would be an
“unconstitutional impediment to President Trump’s ability to govern.”
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I’m struggling with the unavoidable conclusion from
this process and the federal cases that some people actually are above the law.
Some people means Donald Trump.
But the district attorney’s office isn’t wrong when they say the equities
here need to be balanced. On the one hand, there is the public interest in
seeing sentencing carried out following a jury’s verdict of guilt; the people
of New York are entitled to accountability from a defendant convicted of crimes
in their state. By the same token, there is the pragmatic recognition that
Trump is now in the middle of a presidential transition. (I feel compelled to
say, his commitment to what should be the hard work of that process is probably
as authentic as the $100,000 Swiss “victory
watches”—probably made in China—that he is selling to his
followers and pocketing proceeds from.) Whether he is committed to the process
or not, the importance of having a commander-in-chief fully focused on the
nation now becomes part of the rationale for letting him escape the judgement
of judge and jury.
For many people, the rule of law has become a laughing
stock, a joke. But hear me out on this—abandoning the rule of law is not the
path forward for us. Insisting on it, demanding that it still apply, is.
We don’t know for certain what the district attorney or
the special counsel will do yet. It seems very likely these developments signal
the end of the criminal prosecutions of Donald Trump, although one or both of
them may still have a final move. Either way, it’s the start of a long four
years—hopefully that’s all it will be. We have to hold tightly to as many of
our laws, norms, and democratic values as we can, because we’re going to need
them to get through this. So, let’s acknowledge that the rule of law has been
bloodied by Donald Trump and that we don’t like it. It’s unfair, and it's
un-American. But instead of abandoning principle, let’s make sure everyone
understands what a travesty this is. And as we gear up for the near-certainty
Trump will pardon January 6 rioters, let’s understand what that means. It’s a
stain upon justice. It’s unacceptable.
We already know the questions the next two years will
bring. They include whether voters will make an effort to right the ship of
state at the midterm elections; whether they will have buyer’s remorse in the
numbers needed to set up a legislative counterbalance to Donald Trump’s
invocation of broad executive power by retaking the House and/or the Senate?
That will be essential.
It is a dreary path forward, this fight to reclaim
longstanding principles we’ve taken for granted, like the fact that a criminal
defendant judged guilty by a jury must face the consequences. But either we
begin that work, or we abandon democracy entirely. I choose the path of hard
work, and although it’s a disappointing and unsatisfying feeling right now, I
hope you will, too.
We’re in this together,
