Democracy’s Challenge in Times of Constitutional Conflict

Volume 11, Issue 33


Contemplation of Justice

In response to former President Trump’s legal team’s request to delay the January 6th insurrection indictment trial to January of 2026, Special Counsel Jack Smith emphatically rejected the request saying “the people have a right to a speedy trial.” Actually, the only delineated specific right to a speedy trial is found in the 6th Amendment to the U.S. Constitution. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…” Traditionally, the defendant decides when he or she is ready to go to trial to present a proper and thorough defense, and, in so, self-strategically defines the parameters of a speedy trial.
In the inverse, the public has a right to an expedient adjudication of justice. When a crime is committed against the public, the people expect swift due process of judicial findings. The term “right to a speedy trial” in reference to the public’s expectation is not explicitly mentioned in the Constitution. It is an implied universal right. The overall intent and tone of constitutional jurisprudence reflects this right of the people.
If the determination of a speedy trial were solely up to the defendant, then an obstructionist individual could delay justice indefinitely. The balance between a defendant’s right to a speedy trial and the public’s right to timely justice rendered is under the purview of the presiding judge.
Normally, a high-profile criminal prosecution can manage these differing constitutional rights through the standard protocol of the trial process. All that changes when the defendant is the former President of the United States currently running to be re-elected President.
President Trump has now been indicted in four separate venues on 91 counts of criminal conduct. The trial schedule recommended by each prosecutor appears to neglect any consideration for the timing of presidential primaries and the electoral process established for the 2024 election cycle. Technically, they have no obligation to do so. Trial proceedings are supposed to operate independently of political proceedings. President Trump’s legal team will argue that it is virtually impossible for them to prepare for trial while the defendant is running nationally for President. The question becomes, what is his right to run for President, if any, and what is the people’s right to hear all the facts salient to the decision-making process for a presidential vote?
Once all defendants are arraigned, the presiding judge has an obligation to maintain the integrity of the judicial system. At times, this will involve a gag order with specific rules and guidelines as to what can be discussed or proclaimed outside the courtroom. This is, under certain circumstances, necessary to avoid tainting the jury or intimidating witnesses. Further, such an order may be required to lower the temperature of the public emotionally to ease pressure from demonstrations or riots. This is a case wherein free speech can be limited.
These elements may, in fact, present themselves as conditions precedent in any public trial involving former President Trump. At the same time, if he has a right to run for election, he has the right of free speech to campaign. This First Amendment right would be critical in addressing the people’s right to hear all the facts.
These two sacred American institutions of elections and judicial processes will have to be measured and balanced within the competing protocols of the courts, the elections, an individuals’ constitutional rights, and the people’s right to know. The people’s hemorrhaging confidence in government institutions depends upon it.
And so does the future of democracy.
A recent NBC poll released this past weekend indicates the threat to our constitutional way of life. On the question, do you believe democracy is capable of handling the situation of a former President running for President while under indictment, 83% of the American people said no.
Further, as to the question, do you believe that the Department of Justice (DOJ) is acting honestly in its prosecution of Donald Trump, only 17% of the American public said yes.  These fears of American citizens that their government is not acting in good faith jeopardizes their faith in fair elections, and therefore, a peaceful transfer of power. This mistrust transcends party lines. Only 14% of Republicans and, correspondingly, 24% of Democrats have any confidence in the leadership of the DOJ. Yet, no national leader of either party addresses this abstract abandonment felt by the American people in non-partisan terms.
Tomorrow, former President Trump is scheduled to be arraigned in Georgia’s Fulton County District Court. His bond is reported to be $200,000. Interesting that a bond is necessary. Posting bond is usually only critical when there is a risk of flight or the defendant is a threat to the community. Donald Trump is under Secret Service protection. The federal government knows where he is every second. The argument from the authorities in Georgia for the requirement to post bond will be that it is statutory based upon the number of felony complaints. The standard requires all defendants to be treated the same.
It is important to remember that everyone charged with a crime is innocent until proven guilty. An individual does not forfeit their constitutional rights when charged with a crime. In fact, it is the American system of jurisprudence that protects those constitutional rights. In the case of the People versus Donald J. Trump, delineated specific rights must be balanced with the people’s implied universal rights
Oddly enough, there is no constitutional provision or federal law prohibiting a US citizen running for or holding the Office of President of the United States as a convicted felon. Seven Republican candidates are participating in the first Presidential debate tonight. They will be asked by the moderators weather or no they will support Donald Trump for President if he is convicted of a federal crime. This will become part of the matrix of issues that the public must filter to determine who they will support for President. 
To the left of the Supreme Court building on approach sits a statue titled Contemplation of Justice. The sculptor James Earle Fraser described the female figure as “a realistic conception of what I consider a heroic type of person with a head and body expressive of the beauty and intelligence of justice.” A book of laws supports her left arm and a figure of blindfolded Justice is in her right hand. The Supreme Court may be called on to ultimately define the proper balance of all rights in this cycle of the democratic process.
The composite emotions of fears and expectations driving American attitudes are both visceral and patriotic. Visceral in the context that they instinctively feel something is wrong that cannot explicitly be defined. And patriotic in the context that they love their country, 94% are proud to be Americans. They want their children to inherit the freedom with which they have been blessed. 
Democracy is the authority that imbues both the ordained liberties of specific rights and universal rights. It is this authority that will be democracy’s challenge in times of constitutional conflict.
The people’s dislike of national leaders, coupled with their mistrust of government, amplifies their disbelief of government rhetoric, leading to discontent in their relationship with elected officials.
It is not so much about Biden versus Trump, Democrats versus Republicans, or progressives versus conservatives…
It is about politics of power versus the people, and the fate of democracy is at stake.
My name is Marc Nuttle and this is what I believe.

What do you believe?