From the President: When Trump Is on Trial, So Is the Rule of Law

Michael Heiskell says that “when Donald Trump is on trial, so is the rule of law.” The legal proceedings involving Trump serve as a reminder of defense lawyers’ vital role as constitutional warriors who are essential to the sustainability and survival of the legal system.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

On March 30, 2023, Donald J. Trump became the first former president to be indicted. The 34 counts of falsifying business records in the first degree in New York marked the beginning of four separate criminal cases charging Trump with a total of 91 felony counts, ranging from falsifying records and willful retention of classified documents to federal election interference and state of Georgia election interference. Added to this unparalleled and unique mix of charges is the fact that Trump is the 2024 Republican nominee for president. Even Hollywood could not top this scenario.

Defense counsel have the unprecedented assignment of defending a former president in four criminal courts. Counsel are also dealing with an uncertain trial schedule while trying to balance cases that are all in different jurisdictions, with different judges and different interests.{1} 1  As The Champion goes to press, the New York state criminal case is scheduled for April 15, 2024. Some of the cases have branched off into the appeals court and one, in Georgia, included a collateral attack on the integrity of prosecution team members that sought to disqualify them. The attack was partially successful, resulting in the appointed special prosecutor resigning. However, an appeal of the court’s order is pending. As the nation waits for these historic trials to unfold, defense attorneys must maintain a discerning eye on the proceedings and view these matters as not just Trump, but the “rule of law,” being on trial. With this perspective, we are often subordinate to our individual political beliefs when it comes to Trump. He, like no other politician in recent memory, is a polarizing figure — maybe the most polarizing in the nation’s history. As a result, emotions and opinions can cloud one’s judgment about the impending trials and preferred outcome. For example, I hear among some of my local colleagues that all of us take the oath to support the Constitution.{2} 2  Tex. Gov’t Code § 82.037, Oath of Attorney: “(a) Each person admitted to practice law shall, before receiving a license, take an oath that the person will: (1) support the Constitutions of the United States and this State. …” Therefore, when Trump is charged with attempting to prevent the peaceful transfer of power between opposing parties, will support of his defense undermine the oath we take to support the U.S. Constitution and be protectors of democracy? On the other hand, some state that we have laws that prohibit the executive branch from using the Department of Justice to go after political opponents, i.e., weaponizing the Department of Justice, which undermines public confidence in the legal system. There is no doubt that the four pending trials will be chaotic — even if the defendant were not a former president running for re-election. Trump adds spice to the mix by scornfully attacking prosecution counsel, judges, and other officers of the court while also denouncing our country’s judicial system and its future — unless he is re-elected. These forthcoming trials reveal some of the tensions inherent in our adversarial legal system.

My thoughts on this subject led me to the rediscovery of Richard Klein’s column in the June 2012 edition of The Champion titled “The Role of Defense Counsel in Ensuring a Fair Justice System.”{3} 3  Richard Klein is a noted professor of law at Touro Law Center. He is active with several committees of the Criminal Justice Sections of both the ABA and the American Association of Law Schools. It highlights our vital role as constitutional warriors and “law enforcers” who are essential to the sustainability and, thus, survival of our legal system. The role of the judges also will be under a microscope as they juggle the motions and trial schedules, which raises several questions: How much coordination will there be among the judges? How will they rule on change of venue motions that will surely come to the forefront? How will they conduct voir dire, and how much time and leeway will they grant to defense counsel during the jury selection process? Will the protective orders in place for the willful retention of classified documents hinder defense efforts? What jury instructions should apply? These issues await critical decisions that could set precedents for individuals accused of crimes beyond just Trump.

As this year drags on with the specter of these trials occurring and the revelation of various defenses proffered by counsel, let us be respectful of these defenders in the trenches who must deal with the prosecutors, judges, and the unique proclivities of their client. Their role in these historic trials will be scrutinized like no other. Let us give countenance to them, unless the facts prove otherwise, as they make history.

Finally, as these trials unfold, the press may call upon some of you to provide commentary and opinion. Feel free to express your individual opinion. However, if asked to comment on behalf of NACDL, please contact me or NACDL Executive Director Lisa M. Wayne for guidance, as our organization must speak with one voice during these historic times.

When Trump (like anyone else) is on trial, so is the rule of law; that is why we uphold our side of America’s adversarial legal system. High-profile criminal trials often provide teachable moments. So NACDL, as the nation’s criminal defense bar, will take opportunities as appropriate to educate the public on civil rights, due process, and the central role of defense counsel in advocating for a society where all individuals receive fair, rational, and humane treatment within the criminal legal system.

About the Author

Michael P. Heiskell is the owner of Johnson, Vaughn & Heiskell in the Fort Worth-Dallas, Texas area. He represents individuals and entities in state and federal courts throughout the country, with an emphasis on white collar investigations and prosecutions. He is a past president of the Texas Criminal Defense Lawyer’s Association.

Michael P. Heiskell (NACDL Life Member)
Johnson, Vaughn & Heiskell
Fort Worth, Texas

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