Trump is Not Ordinary

Photograph Source: Michael Vadon – CC BY-SA 2.0

Trump is not ordinary in any way. And not only is he out-of-the-ordinary but he’s got a wave of followers. Jack Smith and Judge Chutkan are very sensitive to the unique political situation right now.

He’s not an ordinary criminal because the crimes he’s committed are not ordinary. How many people in our history have actually tried to subvert the certification of an election and the peaceful transfer of power? How many presidents have plotted to undermine the very system they serve?

The political situation is unique and precarious because if a judge just slams Trump away without the DOJ establishing a very clear record of his present abuses, while they make the case against him for his underlying criminal violations, civil war could erupt. It’s no joke and must be taken seriously.

You and I may think Trump is a joke. He’s a buffoon, an idiot — YET he has tens of thousands (millions) of followers who will do anything for him, even (and especially) commit violence against others. THIS is what Jack Smith detailed in his most recent motion to reinstate the gag order. (For a few examples of Trump’s recent violations, see pages 18–20.)

Contrary to popular opinion, prosecutors do not do the same thing with each defendant. Or rather, what they do that IS the same is adjust their tactics to each case. Trump is a former president and he is running again for the presidency. It would be grossly unwise and irresponsible for Jack Smith and Judge Chutkan to fail to consider the political situation. Neither of them wish (and it would be a dereliction of duty) to see the situation escalate to the point where violence and death result.

That does not mean, however, that they are willing to let Trump get away with his extreme violations of the legal restrictions on him. Chutkan’s stay of her first gag order was not an endorsement of Trump’s claim that his First Amendment rights of free speech were being violated. She was merely saying “For now, fine — let nobody say I didn’t give you a chance.”

Meantime, for Smith and Chutkan, it’s a delicate balancing act on a tightrope.

Michael Popok noted in a recent “hot take” that all four (!) of Trump’s motions to dismiss the case against him this past week are based on a single, fundamental (and Popok claims, intentional) misconception: that he is being prosecuted for his SPEECH — but that is false (and obviously so). Trump is being prosecuted for his criminal CONDUCT.

Chutkan’s initial order (says Smith):

“placed no limitations whatsoever on the defendant’s ability to proclaim his innocence, to allege that the prosecution is politically motivated, to attack institutions like the Department of Justice and the government generally, to criticize individuals who are not participants in the case, including the incumbent president, and to criticize the platforms and policies of political rivals, even when they are expected to be witnesses at this trial.”

Smith’s motion points out that the court has a DUTY to protect the legal proceedings, which I have pointed out in a previous post actually protects Trump’s own Sixth Amendment right to a fair trial. The court has “an affirmative duty,” Smith writes — citing to U.S. Supreme Court precedent — , to “take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.” (Quoting Sheppard v. Maxwell, 384 U.S. 333, 350–51 (1966).)

As this illustrates and as I have recently also pointed out, Trump’s wins are merely him shooting himself in his own foot. If he succeeded (but he won’t) in getting the court to let him taint the proceedings, he in fact would damage his own chances of a fair trial. The court cannot let Trump do whatever he pleases but the court CAN give him some rope to use in full public view while the prosecution puts it all on record. Every time Trump opens his mouth, he brings his own political and social demise closer.

So, again, while I am not saying the justice system is always and absolutely fair, the actions of Smith and Chutkan are not (in my opinion) about treating Trump differently because he’s rich, white and famous. They are about engaging in a delicate balancing act to ensure full due process and a strong record of both Trump’s actions and their own.