AYESHA RASCOE, HOST:
As we say, former President Donald Trump faces legal actions on a number of fronts. In fact, there's the prospect of as many as six trials in the next year. A piece in Lawfare asks, does Donald Trump have to attend his own trial? It's by Daniel Richman. He's formerly a federal prosecutor and now teaches at Columbia University. Daniel Richman, welcome to the program.
DANIEL RICHMAN: Thank you for having me.
RASCOE: So first, how might judges approach the challenge of scheduling all of these Trump trials?
RICHMAN: I think it will be a huge challenge, not just because there are so many of them but because only two of them have the same prosecutor in common. And unsurprisingly, each prosecutor in court thinks her case is the important one. So it will take some diplomacy and work. And that's not even considering the efforts of Trump and his team that we could expect to be pushing for delay until after the election.
RASCOE: So the big question that you pose in your piece is, like, does former President Trump need to appear in person for these trials? And I don't know. I thought you had to appear.
RICHMAN: You were fair for thinking of that because, at least in the federal system, when you look at Rule of Criminal Procedure 43, it flatly says, defendant must be present at every trial stage. So I think what makes things a little complicated is that the flat language of the rule has been, by a number of courts, read to allow for some flexibility that the text does not suggest. From time to time, you'll have defendants who have health problems. And in various cases, you've seen a readiness by trial judges to let a defendant take some time off for really extraordinary circumstances. But I don't think any of this should take away from the basic point that the rule demands presence, and there better be a really good, very specific and very bounded reason for a defendant to absent himself. And particularly, if it's a single defendant case, then it becomes really strange for an empty seat to be there.
RASCOE: Would being on the campaign trail as the potential nominee for the Republican Party - is that a serious enough justification to say, I can't be at this trial right now?
RICHMAN: I think it is a good argument. It's a good argument to say, look, there is a general election coming. I - assuming that Trump becomes the Republican candidate, the voters have a strong, First Amendment-inflected interest to hear from me. And to require me to sit in this courtroom without them hearing my voice is inflicting an irreparable injury not just on me but on the country. Obviously, that's an argument that's never been made because this case is novel.
RASCOE: So what do you think needs to happen then?
RICHMAN: I think judges will have to figure out, to the extent they can, how they can schedule trials or whether they can schedule trials. And my only small intervention here is that a compromise of attendance but not full time really would undercut the whole notion of what trials are supposed to be about, which is holding a defendant accountable. The rule's demand that a defendant be present isn't just a technical thing. A defendant's presence is foundational to a trial. For a jury not to have a defendant present is kind of a sign to them that, at least, he doesn't think this matters very much. And I think the problem would get even worse if he not only were not present but were on the campaign trail saying that this was a ridiculous, illegitimate trial.
RASCOE: That's Daniel Richman, a professor at Columbia Law School. Thank you so much for joining us.
RICHMAN: Thank you very much for having me.
(SOUNDBITE OF ONRA'S "MS. HO") Transcript provided by NPR, Copyright NPR.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.
