Trump’s special treatment in the courts highlights failings in our legal system

Donald Trump and his organization have been sued repeatedly throughout his career. In 2023, the former president has been charged with several crimes of a very different sort. One might think that someone who risks spending decades in prison should get more protection from the courts than someone who risks having to pay money, but the opposite is true for most defendants. Trump’s experience offers a lens into how criminal courts could better treat those charged with crimes — in large part by treating them more like those who have been sued.

To begin with, when someone is sued, they can usually live comfortably while a trial proceeds, whereas three-quarters of federal criminal defendants are locked up while they await trial. Pretrial detention is hugely consequential — incarcerated defendants plead guilty more often and serve longer sentences, and they may never recover from the lost freedom and lost wages even if they win at trial.

Nonetheless, Trump is the exception. He has maintained his freedom while his case proceeds, even though his incredible wealth, jet planes and property abroad plus his history of obstructing justice and his ongoing efforts to impugn the integrity of the legal proceedings against him make the argument for detention quite strong.

Trump has gotten advantages in his criminal cases that look more like those in a civil case, in ways that we think should be much more common. In criminal cases, the government typically provides sparse allegations without meaningful detail. The Trump indictments are laudably detailed, some exceeding 80 pages with transcripts of the evidence.

We think all criminal defendants should get to know the detailed allegations against them. The Supreme Court has required detailed allegations in civil cases. A court will dismiss allegations if they do not seem to provide a “plausible” path to victory — this is extremely common in civil cases, but hardly ever happens in criminal cases.

For cases that survive a motion to dismiss, civil defendants have far better access to the evidence against them to protect their wealth than do criminal defendants to protect their liberty. Civil defendants can demand that witnesses sit and answer questions under oath for several hours at a time and that their opponents answer written questions under penalty of perjury, produce all relevant documents, and even detail all the evidence that they would use to prove their case. In this way, civil cases avoid “trial by ambush.”

Criminal defendants have none of these tools to discover the evidence against them. Trump cannot force law enforcement officers or prosecutors to answer questions from his lawyer. In the federal system, most defendants can expect very few documents from the prosecutor. Most criminal defendants plead guilty before even knowing what cards prosecutors are holding; in contrast, Trump has already received nearly a million pages of documents from the government in the Florida case.

We see no good reason why, in most cases, defendants shouldn’t have these tools to contest the case against them before they go to prison or even before they risk going to trial and the much longer sentence that trial brings.

Civil defendants then get a second chance for a judge to throw out the case against them, by asking the judge for “summary judgment.” For civil plaintiffs to clear that hurdle and get their case to trial, they must detail their arguments and substantial supporting evidence that they have gathered. Criminal defendants have no robust way to argue that the government’s evidence is too weak and, thus, that they should not have to face trial and its risks, including a much longer sentence. Neither does the government have to lay out its evidence.

Some defendants can challenge the lack of evidence against them at a preliminary hearing, but preliminary hearings are not always required and the proof hurdle the government must clear there is low. Judges accordingly rarely dismiss cases after a preliminary hearing.

In sum, criminal defendants often have no access to the evidence against them until the eve of trial and have no way to challenge the government’s weaknesses short of going to trial. Civil defendants trying to protect their money have much better tools. Instead, criminal defendants must face the choice of going to trial largely in the dark, or pleading guilty to get lenience.

Criminal defendants do have advantages in the few cases that go to trial. They can sometimes have evidence excluded if the government obtains it illegally. The government must prove its case beyond a reasonable doubt, whereas civil defendants can lose on a mere “preponderance of the evidence.”

To be sure, Trump is not being treated like an ordinary criminal defendant, as he prepares in the comfort of his home with a detailed disclosure of the allegations against him. So, too, has he tried to act like a civil defendant, drawing out the case timeline as long as possible and even filing civil lawsuits to challenge the government’s investigation. But despite Trump’s special treatment, compared to civil defendants, the former president faces a shameful lack of procedural rights.

People charged with crimes should have at least the same rights as those who have been sued. We think that looking at the civil system provides a good place to start rethinking how we can better protect criminal defendants in ways that Trump’s cases highlight.

Russell Gold is an associate professor at the University of Alabama School of Law. He previously taught at Wake Forest University School of Law and New York University School of Law.

Chris Robertson is a professor of law at Boston University School of Law. He previously taught at the James E. Rogers College of Law at the University of Arizona.