Hayden: ‘It’s been the Court System that Saved Democracy’
Citing a critical and historic test for the rule of law in a country determined by laws, InsiderNJ legal analyst and veteran defense attorney Joe Hayden offered his immediate impressions of the federal indictment of former President Donald J. Trump.
Hayden on Thursday said he believed the DOJ made a mistake by not unsealing the indictment immediately because Trump would have more time to establish his narrative, but Friday was a better release date than Monday.
As for the case itself:
“It’s an [alleged] crime of defiance,” Hayden said. “That is, the National Archives people asked him for the documents. The feds served a subpoena. They issued a search warrant. Trump is saying no one tells me what to do, I’ll do what I want. It’s a self-inflicted wound not government weaponizing. If Trump had complied, there wouldn’t be a crime here. If he acted like [former Vice President Mike] Pence and [President Joe] Biden, there wouldn’t be a crime here.”
Biden and Pence both returned demanded documents, unlike – allegedly – Trump.
What about citing the case in Florida?
“Tactically it would have been reckless to have it in Washington, and it bespeaks of confidence of the special prosecutor in his own case,” Hayden said.
What about the context of cases, both unveiled and incipient, against the former president?
“I think the New York case is strike one, this case is strike two and the Georgia case is strike three, which could well be a RICO,” said the veteran defense attorney. “All outward signs point toward an indictment in August. If that Georgia case comes it will be strike three. Trump won’t be able to blame the DOJ for picking on him.
The Mar-a-Lago documents case shows the former president defiantly refusing to follow the rule of law, but it’s all of a piece, said Hayden.
“In the 2020 election, the democratic process in our country received its ultimate challenge from Trump and the right wing and the center held, thank God,” he said. “The legal system now in having to deal with the multiplicity of serious criminal charges in the context of a presidential election will receive its ultimate challenge and we had better hope the center will hold up. Until now it’s been the court system that has saved democracy; to whit, the 61 decisions where Trump challenged the election on the theory of fraud where his unsupported challenges were rejected – on many occasions by Trump-appointed judges – in those case the system worked. In the defamation and rape case in NYC where Trump was found libel, the system worked. In the defamation case against Fox News, where Fox settled on the eve of jury selection, the system worked.
“The system here will have to do something virtually unprecedented,” Hayden added, “which will be to handle criminal litigation in multiple jurisdictions against a candidate for president, perhaps during the campaign. Trump’s ultimate defense is the claim that he’s only been charged because he’s running for office, which is nonsense, but he hopes that if he muddies the waters he can be reelected and pardon himself for any federal charges, including the Jan. 6 indictment down the road.
“I lived through the turmoil of the sixties and the assassinations of JFK, RFK, MLK and Malcolm X, as well as the turmoil of the Civil Rights movement and Vietnam war protests, but despite the violence we did not have the systemic societal challenges we have here,” Hayden noted. “Then there was no challenge to democracy and no challenge to the efficacy of the court system. Trump inevitably will claim the DOJ has been weaponized but the way the special counsel functioned independently of President Biden or the AG refutes that false claim. The problem is an independent voter has to go into the weeds to see how the special counsel operates independent of the president in order to be convinced by the objective facts. Trump’s people will never do an objective analysis. The dilemma is you can’t not bring charges against somebody who tried to overthrow democracy or who refuses to abide by the rule of law and obstructs justice merely because you cannot convince the Trump voters. This is what will lead us to the inevitable clash of ideologies around the election because justice and democracy demand justice be brought. For legitimate law enforcement to refuse to bring charges is to surrender the rule of law to the extremists. You’ve got to fight. You’ve got no choice. We learned all this from Neville Chamberlain.”
Hayden foresees possible trouble in Miami, and more volatility than New York in terms of the logistics of the arraignment there. “But there is no choice but to bring the charges. What was [AG Merrick] Garland supposed to do when Trump wouldn’t comply with the subpoena?” The special counsel – in whose hands the subsequent federal case against Trump evolved – had the ability to make an unfettered investigation of the classified documents matter – a decision made entirely and completely by the special counsel.
“That removes Garland and Biden from any decision about whether or not to indict,” Hayden, who especially applauded the appointment of a special counsel. “It was a brilliant move for people willing to look at the facts, to appoint a special counsel to do this investigation rather than it be done in house in the DOJ. Garland received the benefit of a great lawyer in the person of Jack Smith, who did all the pick and shovel work.”
I enjoyed this well-written, objective analysis. Thank you, Mr. Hayden!
More false narrative from the left wing nutcase attorney again. It’s getting tiresome listening to this idiot. He’s a blatant radical left-wing Democrat. He’s obviously part of the Deep State crowd that “goes along, to get along”. Hayden is a federal attorney. His wife was a federal District Judge and then Circuit Judge. Get the picture??? Hayden is part of the Deep State. His comments about Trump are as ridiculous as the moron Jack Smith that brought the scam indictments.
I ask one question: Why is Jack Smith not living in the United States, but lives in The Netherlands??? Is he even an American citizen??? Is his name even “Jack Smith”??? Everyone in America needs to keep a jaundiced eye on Jack Smith, who has lost high profile cases before based on fraud, false evidence and withholding evidence.
Jack Smith was based at The Hague as chief prosecutor for the special court tasked with investigating international war crimes. The Hague is located in the Netherlands. John “Jack” Smith grew up in New York State.
Until one of Trump’s indictments goes to trial, and is adjudicated Trump’s followers will be ready to bare arms. It would be best if the classified docs case goes first and the Trump appointed judge has no choice but to rule with the law or it will go to the Supreme Court.