Donald Trump’s Prosecution In Washington D.C. Demonstrates That The Right To A Fair Trial Is An Illusion For The Average Defendant Accused Of A Crime By The Federal Government
In the Jan. 6 prosecution, Donald Trump will receive procedural rights not available to any other defendant. The question is, if Trump is being treated just like any other person accused of a federal crime, why is Jack Smith going out of his way to ensure that Trump receives a fairer trial than anyone else gets?
When the Supreme Court speaks of the right to a fair trial, the Court does not mean the right to a trial where the prosecution and the defense are on a level playing field. The Court means those protections afforded explicitly by the Sixth Amendment, that is, the right to: assistance of counsel;[1] trial before an impartial jury;[2] a public trial;[3] the power to subpoena witnesses to trial;[4] be informed of the charges against them; and confront their accusers.[5] The Court has also recognized that under the Fifth Amendment’s right to due process of law, there is an implicit right to a presumption of innocence, meaning that a defendant can only be found guilty if the government proves their guilt beyond a reasonable doubt[6]. In 1970, the Court for the first time held that the right to counsel means the right to effective assistance of counsel.[7]
To most Americans who are unfamiliar with how the criminal justice system actually works, this seems like a great deal of protection for the accused. But like anything else, the devil is in the details. Consider the following:
(1) Prosecutors have the authority to compel people to speak to them and answer their questions. They do this through the subpoena powers of the grand jury. Those same procedures are used to compel the production of documents and other physical evidence the prosecutors need during the process of their investigation.[8]
Defendants have no such right. They can compel a person to appear at their trial, but they cannot compel this individual to answer questions before trial. Consequently, unless the witness has cooperated and voluntarily spoken to defense counsel before trial, counsel doesn’t really know what the witness is going to say.
(2) Prosecutors are not required to identify their witnesses before trial.[9] Only where a prosecutor has provided a benefit to the witness, such as an agreement to drop charges or a recommendation of a lower sentence, or where the prosecutor knows of evidence impeaching the witnesses credibility, such as the witness’s criminal record, must prosecutors disclose such information, and even then, prosecutors can wait to disclose this information until shortly before the start of trial, greatly limiting defense counsel’s ability to investigate whether there is more impeachment evidence available or whether there are other undisclosed benefits.[10]
(3) A defendant is entitled only to a copy of his own statements given to law enforcement.[11] A defendant is not entitled to see a statement made by a witness before the start of trial, and even then, only after the witness has testified.[12] Prosecutors generally provide such statements in advance of the witness taking the stand, but only to avoid delaying the proceedings. BUT, and here is the devil again, federal agents do not take “statements” from witnesses. They take notes.[13] So only if the witness has testified in front of a grand jury will their prior testimony be given to the defense. AND there is no requirement that the government examine any of its witnesses before a grand jury.
(4) Rule 16 of the Federal Rules of Criminal Procedure requires that prosecutors provide the defense all documentary and physical evidence in their possession that pertains to the allegations against the accused, but they are not required to identify what evidence they intend to introduce at trial. What this means is that prosecutors can drop terabytes of material onto the defense and tell defense counsel to go fish.
Together (1), (2), (3), and (4) mean that the average defendant in a federal criminal case goes into court not knowing the identities of some or all of the government’s witnesses, not knowing what the witnesses have told the prosecutors, and having to prepare their defense without even the most basic tools afforded civil litigants: subpoenas, depositions, the identities of the witnesses. The right to effective assistance of counsel is thus reduced to a right to have counsel do the best they have with what they get.
Why are prosecutions so tilted in favor of the government? The government claims it is to prevent defendants from intimidating witnesses and to thwart efforts by defendants and their lawyers from manufacturing evidence and arguments that could subvert the truth.
Forty years ago an effort was made to revise the rules to require that witness identities be disclosed to the defense. Despite unrefuted evidence from federal courts in California that such a rule does not interfere with the administration of justice, the Department of Justice was able to kill this reform in Congress. See Emma Cecil’s and Carl Lietz’s excellent article discussing the history of the reform effort, “Avoiding Trial by Ambush: Why It’s Time to Revise the Federal Rules of Criminal
Procedure to Require the Parties to Disclose Witness Lists.”[14]
Witness intimidation, witnesses killed. It happens. But it happens despite the limitations on pretrial discovery. This is because the identities of witnesses are disclosed to the defendant at the start of trial, that is, before the witness testifies. In those instances where a witness is “gotten to” before trial, it is because the defendant knew who they were; usually because they were the defendant’s friends or associates or in the case of white-collar offenses, someone they worked with.
Efforts to intimidate witnesses are not limited to prosecutions against gangs or organized crime. It happens in white-collar cases as well. Recently, Sam Bankman-Fried, alleged cryptocurrency fraudster, had his bond revoked on the grounds that he attempted to intimidate witnesses. Also last week, the judge in Washington granted a protective order to limit what Trump could say out of concern that he might attempt to intimidate witnesses.
Nevertheless, in the Washington D.C. prosecution, the Special Prosecutor is providing Trump and his attorneys:
• grand jury transcripts and associated exhibits through the date of the indictment;
• witness interview recordings, transcripts, and reports, including agent notes, along with records used during the interviews;
• the vast majority of materials obtained through search warrants, 2703(d) orders, and grand jury subpoenas; and
• unredacted materials obtained from other governmental entities, including the House Select Committee to Investigate the January 6th Attack on the United States Capitol and the United States Secret Service.
Not only that, the prosecutors said that:
The Government went to great lengths to organize these materials in a user-friendly manner, prepare them in formats ready to be loaded into a document review platform, and create detailed logs to guide the defendant’s review.[15]
Thus, prior to trial, Trump will know who each witness is and what each witness will say. Trump will possess the very information denied to every other defendant out of fear that the defendant might try to harm or intimidate the government’s witnesses. Under these circumstances, it is not unreasonable for some to conclude that Jack Smith wants Donald Trump convicted as early as possible in order to damage Trump’s campaign for president.
What accounts for such largesse by the Special Prosecutor? Maybe he is concerned that the judge would grant Trump’s lawyers a lengthy continuance to prepare. Or maybe because he wants to prove to Trump supporters that Trump is getting a fair trial. Or maybe he believes that the American public is entitled to know how dangerous and corrupt Trump is before they vote.
Regardless of the reason, Jack Smith has shown that when it suits the government’s interests, the government has no real concern that its witnesses will suddenly come up with a bout of amnesia or that Trump’s lawyers will now be in a position to subvert the truth. And if some issue were to arise, the protective order or a revocation of bond will be sufficient to deal with it.
But what does this say about everyone else’s right to a fair trial? Do those rights just depend upon political expediency? And doesn’t this demonstrate that defendants can receive far greater information about the government’s case without endangering the integrity of the system. Indeed, when government witnesses are lying (which they do with some frequency), won’t this advance the cause of preserving the integrity of the system.
Congress can change the rules and require that the government disclose witness identities before trial; change the law and require that any statement by a government witness be disclosed to the defense before trial. As the Trump prosecution shows, it’s time.
[1] Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
[2] Skilling v. United States, 561 U.S. 358, 378 (2010).
[3] Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979).
[4] Chambers v. Mississippi, 410 U.S. 284, 302 (1973).
[5] Coy v. Iowa, 487 U.S. 1012 (1988).
[6] Taylor v. Kentucky, 436 U.S. 478, 483-86 (1978); Kentucky v. Whorton, 441 U.S. 786 (1979)
[7] McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).
[8] Rule 17, Federal Rules of Criminal Procedure; Blair v. United States, 250 U.S. 273, 281 (1919).
[9] Rule 16, Federal Rules of Criminal Procedure govern what information the government is required to disclose to the defense before trial. A witness list is not required by this rule
[10] The Justice Manual, Section 9-5000D.2 states:
Impeachment information. Impeachment information, which depends on the prosecutor's decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. In some cases, however, a prosecutor may have to balance the goals of early disclosure against other significant interests—such as witness security and national security—and may conclude that it is not appropriate to provide early disclosure. In such cases, required disclosures may be made at a time and in a manner consistent with the policy embodied in the Jencks Act, 18 U.S.C. § 3500.
[11] Rule 16(a)(1) FRCP.
[12] Rule 26.2 FRCP.
[13] Rule 26.2(f)(1) defines narrowly what a statement means for purposes of the rule,
(f) “Statement” Defined. As used in this rule, a witness's “statement” means:
(1) a written statement that the witness makes and signs, or otherwise adopts or approves;
[14] The Federal Lawyer, p. 8, March/April (2019).
[15] Government’s Response to Court’s August 3, 2023 Minute Order, United States v. Trump, 23-cr-00257 p. 5, United States District Court, District of Columbia (August 10, 2023)