Yesterday I heard a news show host I like a lot ask a lawyer a question. To paraphrase, “With Trump protesting about his innocence and making accusations supported by his GOP followers, shouldn’t Jack Smith go public in response?”
I believe the experienced lawyer repeated what he’s been saying a lot lately: There are two courts in this matter — the court of public opinion and the court of law.
So, no — the DOJ does not “go public” and respond to Trump’s screech. Jack Smith and his colleagues work in the court of law. They don’t have to argue the case in the public-political arena, they don’t have to win public opinion.
They will argue the case in court. The only “opinion” they will work to achieve is the jury’s.
The arena of public opinion has no role in the criminal case. Public opinion won’t affect a damn thing. All the yowling and ex parte defenses of Trump create a false atmosphere suggesting that a criminal case is presented to the public like a reality TV show. Didn’t “American Idol” ask their public to phone in (on a 900 number?) to vote for the winner?
A criminal case is not a reality TV show — and, given my experience with the O.J. Simpson trial, it’s only one of the reasons why I passionately urge that the Trump trial not be televised.
After I heard the above discussion, I turned to the Times and found a pretty good column by a Cardozo Law School professor, Deborah Pearlstein, “The Genius of Leaving Trump’s Fate Up to 12 Ordinary Floridians.”
Admittedly, I think it’s good because, amid the current noise about the situation, I put in earplugs to think about juries. Indeed, I was about to dip back into The Bill of Rights, by Yale professor Akhil Reed Amar, who had a number of fascinating points to make about the role and power of juries as cited in the Fifth, Sixth, Seventh and Eighth Amendments.
Although she’s professorially equivocal about what could happen over the difficulty of getting the national security documents admitted as evidence (I don’t know why it should be a problem: the summaries of each document in the indictment are clear and shocking enough), Professor Pearlstein points out:
Whether the documents do pose such a threat is what the courts call a question of fact — meaning that as the case goes forward, this significant question of national security will rest squarely in the hands of a dozen ordinary Florida citizens. If the government doesn’t persuade them, Mr. Trump will be found not guilty.
It is hard to imagine a case that places more pressure on the functioning of the jury — or that more dramatically illustrates its unique value.
The jury system’s constitutional authority makes it, at its best, an essential check on government overreach. In a case like this, its democratic legitimacy also gives it a better chance than any other governing institution to render a judgment that can withstand the political firestorm ahead.
It’s all about the jury.