Today in Unraveling the Rule of Law

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.

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.”

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,

Joyce