The Sixth Amendment guarantees a “speedy trial,” and if an appeal is taken before the trial technically ends (e.g. an interlocutory appeal) then the defendant has a Sixth Amendment right to a speedy appeal because the appeal is happening within the trial. Former President Trump’s trial will technically end on or about July 11, when the trial court is expected to enter judgment of conviction.
I agree with Yale Law Professor Jed Rubenfeld who recommends that Trump seek a temporary injunction to forestall the entry of judgment of conviction, thus ensuring a speedy appeal before there is irreparable harm. Courts including SCOTUS have power to provide a speedy appeal even absent a constitutional right of speedy appeal, but the best way to secure that constitutional right to a speedy appeal would apparently be to enjoin entry of judgment of conviction.
Any judicial failure to provide ex-President Trump with expedited review prior to the November presidential election would substantially escalate the Ted Stevens debacle of 2008 and 2009. As you may recall, Stevens was a senior Republican U.S. Senator from Alaska who was wrongfully convicted, which caused his defeat for reelection, after which he was totally exonerated. We are headed toward a similar but greater catastrophe with Donald Trump, regardless of whether Trump is incarcerated (Stevens himself was never incarcerated).
Senator Stevens was convicted of 7 felony counts on October 27, 2008 which caused him to lose re-election one week later; on April 7, 2009 the jury verdict was set aside due to massive prosecutorial misconduct, and the indictment was thrown out. The prosecutorial shenanigans in the Stevens case yielded bountiful rewards, and incentivized more lawfare. For example, without Stevens in the Senate, all 60 Democratic and Independent Senators voted to end a filibuster on the Affordable Care Act in November 2009, with not a single vote to spare; those 60 votes included that of Alaska’s new U.S. Senator, Democrat Mark Begich.
Instead of describing the well-known federal constitutional infirmities of Trump’s recent prosecution in Manhattan, I’m just emphasizing here that the courts have a duty to provide (and complete) an expedited review before the election in November 2024.
It would be unwise for courts to wait past July 11, not just because the right to a speedy appeal might no longer be clearly covered by the Sixth Amendment, but also because the trial judge (in my opinion) is likely to try to thwart a speedy appeal by refraining from sentencing FPOTUS Trump to jail. Moreover, leaving the situation in limbo past July 11 would increasingly color the presidential campaign and the decisions of voters. As mentioned, the Ted Stevens debacle did not involve any incarceration, but it was still a huge disaster for democratic self-government and the rule of law.
In election-year cases of selective prosecution like this Trump case, there’s typically infringement of political speech, with the defendant physically confined to a courtroom instead of campaigning, and subject to gag orders, even aside from the potential silencing effect of incarceration. The more this type of lawfare succeeds and is rewarded, the more it will recur.
To prevent history from repeating itself with a vengeance, there have been many recent calls for the U.S. Supreme Court (or other appellate court) to quickly get involved in the Trump case, and I wouldn’t rule out alternative approaches to that of Professor Rubenfeld, perhaps including an original writ of habeas corpus at SCOTUS. In this connection, note that Judge Merchan has explicitly threatened Trump with imprisonment for violating gag orders, which may render a habeas petition appropriate. Moreover, exhaustion of state remedies is not necessary given the presence of numerous federal constitutional grounds for seeking habeas relief.
The irreparable harm in the Stevens case was as much to the electorate as it was to the defendant, and the same is likely true in this Trump case. Trump’s irreparable harm will begin on July 11 and increase from then on. That harm includes probable cancellation of Trump’s license to carry or use a firearm in self-defense. The U.S. Supreme Court could accept the appeal either before or after entry of judgment of conviction, but the sooner the better, it seems to me.
Appellate courts including the U.S. Supreme Court have power to provide expedited review in this Trump case from Manhattan, but it is less clear exactly what are the metes and bounds of a defendant’s constitutional right to demand it. It’s an interesting legal question. A leading article on the subject is Marc Arkin, Speedy Criminal Appeal: A Right without a Remedy (Minnesota Law Review, 1990). There is a consensus in the lower courts that a federal constitutional right to speedy criminal appeal does exist, but there’s a split of authority as to whether post-conviction speedy appeal claims arise under the Fifth Amendment or instead the Sixth Amendment or not at all. The Georgia Supreme Court noted in 2006 that, “many of the interests protected by the Sixth Amendment are not implicated in the context of an appellate proceeding where the defendant has already been convicted of an offense….” This is a good reason to appeal before the conviction technically happens which is now expected on the same day as sentencing on July 11. Trump’s trial will not officially end until then, so, before July 11, the Sixth Amendment’s guarantee of a speedy trial will not be textually distinct from a right to speedy appeal. The latter will be part of the former.
Posted at 6:33 AM