Does the public have a right to a speedy trial in the Trump case? 

The Supreme Court has just taken Donald Trump’s appeal of his claim — until now, denied — that, effectively, he is immune from prosecution for anything he did while president.  

A further delay, of course.  

Anyone paying any attention knows that Donald Trump has wanted to delay every criminal case against him since, well, forever. A speedy trial is the furthest thing from Trump’s mind.  

After all, Trump isn’t in jail awaiting trial. He is also confident that if he is reelected as president in November, his attorney general will dismiss each of the federal indictment “witch hunts” against him. True, his attorney general can’t dismiss the state indictments, and he can’t pardon himself on those. But why risk conviction or voter turn-off when a second presidency for Trump will unquestionably postpone those trials until after his second term ends — years away?  

Accordingly, he should use every legal tactic to delay — appeals, discovery disputes, time conflicts, election interference claims, whatever. And, of course, seeking delay isn’t an obstructionist act by Trump or his lawyers, as suggested by some. It’s exactly what Trump’s lawyers should do to zealously represent him (or any criminal client). If a lawyer’s delaying tactics will enhance the client’s legal position and aren’t criminal or unethical, ignoring them would actually be unprofessional on the lawyer’s part. And, thus far, the postponements and delays granted in the four Trump indictments don’t really deviate from standard practice.  

Any criminal defendant, under the U.S. Constitution or (where pertinent) state constitution, has a constitutional speedy trial right as well as a statutory speedy trial right. (Incidentally, a criminal defendant may strategically seek dismissal on speedy trial grounds even if he hasn’t really wanted a speedy trial.) So, while the Trump cases are sui generis (that is, unique) because they involve a former president, shouldn‘t prosecutors, too, have a right to promptly bring a criminal defendant to justice?  

The U. S. Constitution and the constitution of most states (except California, Article I, Section 29), however, only grant “the accused” — not “the prosecution” — a speedy trial right. Does that end the discussion? Meaning, can a defendant in the courtroom of a sympathetic judge simply accomplish having his case delayed in futuro notwithstanding the demands of a vigilant prosecutor? Or is there somehow an inchoate right to a speedy trial possessed by the prosecutor and the public too? 

The federal Speedy Trial Act, Title 18 U. S. Code, Section 3161, provides that the appropriate judicial officer shall promptly set any case for trial on a date certain “so as to assure a speedy trial” — not simply a speedy trial for the defendant. And Rule 2 of the Federal Rules of Criminal Procedure states that the purpose of the federal rules is “to eliminate unjustifiable expense and delay” — not just an “unjustifiable delay” by the court or prosecutor.  

More to the point, the leading Supreme Court speedy trial case, Barker Wingo, 407 U.S. 514 (1972) says: “Society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest.”  

Interestingly, Trump special prosecutor Jack Smith actually joined Trump’s request for an interlocutory appeal when the district court first denied Trump’s claimed immunity from prosecution. Smith (appropriately) asked the appeals courts to consider the case. He maintained that the Supreme Court itself should in fact decide the issue (albeit, wanting it to hear the case much earlier). One might wonder whether enough was made about protecting society’s interest in the courts expeditiously moving his two Trump indictments to trial.  

A Supreme Court amicus brief filed by Protect Democracy Project, for example, opposed Trump’s stay application in that court, arguing that “the public” (seemingly somewhat independent of the Justice Department) has a vital interest in a speedy trial. The brief cited the Barker court’s comment that “there is a societal interest in providing a speedy trial which exists separate and apart from, and at times in opposition to, the interests of the accused.” It also cites Gannett Co. v. DePasquale, 443 U.S. 368, 383: “The public … has a definite and concrete interest in seeing that justice is swiftly and fairly administered.” The reference here, again, is to the public’s interest — not simply the prosecutor’s.  

This isn’t intended to suggest that John Q Public should be able to march into court in any case and raise a speedy trial claim if the prosecution isn’t sufficiently assertive. At the same time, the decisional language suggests that the public, typically represented by government prosecutors, isn’t required to sit by idly while the defense strategizes unwarranted delay.  

Amicus briefs may not always bring much to the table beyond the contents of the parties’ briefs. Sometimes, though, as here, even with an aggressive prosecutor such as Smith on the hunt, the public may need to advance its independent “interest” in expeditiously bringing a defendant to the finish line, whatever the outcome might be once it is reached.  

The Supreme Court has set its timetable on when the immunity case will be argued, but hardly how or when it will be decided. Basically, the court, highly politicized as it is, can effectively push a trial (if the immunity argument is defeated) until after a possible second Trump presidency, should it choose to.  

Where is the public’s “interest” in a speedy trial in all of that? 

Joel Cohen, a former prosecutor, practices white collar criminal defense law as senior counsel at Petrillo, Klein & Boxer LLP in New York. He is the author of “Blindfolds Off: Judges On How They Decide” (ABA Publishing, 2014), and teaches at Fordham and Cardozo law schools.