Three legal standards – by all indications – are being distorted, arguably beyond recognition, during Donald Trump’s New York financial fraud trial. Implications for Trump – and for separation of law and politics – are worth review and serious.
First, the US Constitution generally bars “arbitrary and capricious” administration of justice. Arguably, laws without victims versus “real crimes” with victims, are arbitrary. Such rules are regarded with suspicion, seem against public policy, impairing net happiness, no public harm.
For example, if the New York Assembly were lobbied hard by hot dog makers to outlaw hamburgers, then a seller and buyer of hamburgers transacted business, creating a black market for burgers, the buyers and sellers would be happy and no public harm. The law is questionable.
This is, in effect, what Donald Trump has been accused of, transacting business in real estate with lenders and buyers registering no complaints, yet the government – for seemingly political reasons – thinks they can punish him for overvaluation.
Second, “gag orders” – which by definition contravene the First Amendment’s right to free speech, possibly Sixth Amendment’s right to a fair trial – are uncommon, but when used are typically for protecting a jury from being tainted in a criminal trial.
Think about that. Trump’s trial involves a state prosecutor and state judge, no jury. The appellate bench is judges, no jury. The judge obviously will not be influenced by anything Trump says about his clerk having too much influence in this case.
So, why did the gag order – and fine of $15,000 dollars – get issued, former president get punished for speaking outside a courthouse, as defendants constitutionally can – if not to hit him politically, revealing fatal bias in his case?
This seems to be how a New York appellate judge sees things, at least implicitly, since he just put a “stay” on the lower judge’s seemly unconstitutional gag order, reversed it.
The kicker? That “stay” – if based on a perception the original gag order was about by bias, since no jury – creates evidence of incurable or fatal bias, basis for a mistrial.
Third, the gag order – combined with the lower court judge’s openly hostile courtroom behavior toward Trump – suggests Trump is right: He faces incurable bias, a mistrial.
What has Trump done? He has already pointed out the charges have no victim, valuations are subjective, no complaints, and prosecution reeks of political animus.
Now, the gag order is stayed for prudential reasons; no jury can be tainted by anything Trump has to say as there is no jury – and he has free speech rights.
Beyond that, he leads the presidential field in the campaign. He leads his own party and leads nationally. Last, we have a mistrial motion. If granted, as in perhaps ten percent of cases, if would end the Trump trial, forcing a second or end the farce.
What this case is testing is not Trump, but whether justice in America can be distorted by politics or not – whether three legal standards – against arbitrary rules, political gag orders, and fatally biased trials – will survive, or suddenly perish.
Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.