Sunday, December 9, 2018

Donald Trump is entitled to a fair and speedy trial.

photo of a jury
All citizens are now entitled to serve on a jury.  Amendment XIV (1868).

That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.
Art. 8, Virginia Constitution - Bill of Rights – June 1776

The Government’s Michael Cohen sentencing memorandum demonstrates that probable cause exists to indict Donald Trump for election-related crimes committed while he campaigned. It would be an abuse of prosecutorial discretion to fail to present such matters to a Grand Jury.  And the majority of an impartial Grand Jury would almost certainly vote to indict.  What then?

Trump is entitled to a fair and speedy trial.
The President should be indicted.  Now.

Embedded in the federal Constitution - Amendment VI - is a road map for a fair trial.  It was well settled.  The Amendment tracks the Virginia Commonwealth Constitution which preceded the Federal one.  In addition to the familiar rights of trial by a jury of one’s peers and assistance of counsel are the right to confront witnesses, and to have process to compel their appearance.  These elements have yielded the proseuctor’s duty to disclose exculpatory evidence [Brady v. Maryland (1963)] and the closely related right to a speedy trial. [Speedy Trial Act  of 1974].

These principles compel the indictment of a President.  Delay until after he leaves office could prejudice him and endanger the prosecution.  Potentially exculpatory witnesses may die, become ill, or flee the jurisdiction.  The fair trial principle also mandates disclosure to the defendant President of not only the damning but the mitigating aspects of evidence gathered by the Department of Justice.  Surely the equivocations, denials, and memory lapses of everyone the FBI and Justice Department lawyers are material defense lawyers will rightly demand.  Early indictment maximizes the chances for the fair trial to which Donald Trump is entitled.  Delay poses a great risk of prejudice to him.  Both Trump and the public are entitled to prompt indictment, regardless of when he matter is presented to a judge and petit jury for trial. - GWC

No comments:

Post a Comment