A Closer Look at Trump’s Criminal Defense

Elections & Politics Policy Brief #105 | By: Abigail Hunt | November 6, 2023
Photo taken from: cnn.com


Former President Donald Trump faces federal charges for tampering with the 2020 election. In Florida, Trump faces federal charges for obstruction of justice and unlawful retention of highly confidential documents containing sensitive national security information, and in New York, Trump faces state charges for making payments to an adult film star in exchange for her silence in the lead-up to the 2016 election.

In late October, Trump’s attorneys filed several legal documents, including the argument that the court-required gag order preventing Trump from discussing anything related to the pending cases against him is unprecedented. His attorneys use extreme language: “Never in American history has any Court censored the speech of a political candidate.” While that may be true, it sensationalizes something that is a normal part of the legal and political process – sometimes, the law needs to create new rules for new situations. The 22nd Amendment, which limits U.S. Presidents to two terms, was not added into the U.S. Constitution until 1951, six years after Franklin Delano Roosevelt died suddenly, at the beginning of his fourth term and in his 12th year as President. President Harry Truman, FDR’s Vice President, proposed the amendment in 1947, and it was ratified four years later.

Trump’s attorneys requested the court dismiss the criminal case against him, claiming the charges violate Trump’s “First Amendment rights” and rights under the due process clause. They double down on Trump’s misinformation campaign regarding the 2020 Presidential election and walk a fine line between “we drank the Koolaid” and “we’re just doing what the boss wants.” They claim Trump qualifies for “Presidential immunity,” expressing thinly veiled disgust with the legal system for not cementing a President’s right to “carte blanche” for any alleged criminal behavior.

Our earliest legal codes, written by King Urukagina of Lagash in Mesopotamia about 2800 BCE, are few. The basis of Urukagina’s code is dark. Urukagina, like Hammurabi a thousand years later, believed in the law of retaliation, a “lex talionis” (eye for an eye) mentality. He abolished unnecessary government posts and excessive taxation. He outlawed the practice of water deprivation of the working poor. However, he also imposed strict penalties on women for adultery. In fact, his laws were reproduced nearly verbatim in Hammurabi’s Code of Law, written a millennium later, which ordered mutilation or death for certain criminals, such as thieves, cheats, and liars.

If our law had not evolved from the time of Urukagina, an argument could be made to put Trump to death for his documented dishonesty, which is never in question. Yet the due process clauses in the 5th (1791) and 14th Amendments (1868) of the U.S. Constitution share a common phrase – that no one shall be “deprived of life, liberty, or property without due process of law.”

The 5th Amendment guarantees citizens protection from the federal government. The 14th Amendment is an argument to apply the same protections for citizens from the state level. Per Cornell Law, the Supremes, as usual, vary in perspective. Justice Clarence Thomas wrote that the 14th Amendment is “not a secret repository of substantive guarantees against unfairness,” while Justice Stephen J. Field wrote that the amendment “protected individuals from state legislation that infringed upon their ‘privileges and immunities’ under the federal Constitution.”

Substantive (“having a firm basis in reality and therefore important, meaningful, or considerable”) due process has been used as an argument for many years, dating back to the 1200s in England. “Due” is a key word – what process is “due” a person who, for example, is waiting for trial on a criminal charge? That person is due the right to a full investigation of the facts, the right to attorney representation, and the right to a fair and speedy trial by a jury of their peers, among other things. Rather than the broad interpretation being directly and automatically applied, though, due process is defined in the courts on a case-by-case basis.

The interpretation of due process is muddied by the differentiation between a “right” and a “privilege,” which can and will evolve, as all language does. With each case a balance must be struck between what is best for the government, state, and public, and what is a protected right for the individual. Is the protection of “due process” for Trump in this case interpreted as a dismissal of the federal case against him in D.C.? Would a dismissal of Trump’s federal charges somehow permit harm inflicted upon the government, nation, or people go unpunished?

Trump’s federal trial is set to begin March 4, 2024.

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