666
Thomas, J., dissenting
courts on an ad hoc basis, they "provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced." 404 U. S., at 322.
Furthermore, the Due Process Clause always protects defendants against fundamentally unfair treatment by the government in criminal proceedings. See United States v. Lovasco, 431 U. S. 783 (1977). As we explained in Marion, "the Due Process Clause . . . would require dismissal of [an] indictment if it were shown at trial that [a] delay . . . caused substantial prejudice to [a defendant's] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." 404 U. S., at 324. See also MacDonald, 456 U. S., at 8 ("The Sixth Amendment right to a speedy trial is . . . not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations").4
4 The result in the case may well be explained by an improvident concession. While the United States argued essentially that a defendant's speedy trial rights cannot be violated where he is neither incarcerated nor subject to the anxiety of known criminal charges, it did not claim that this was invariably so. Instead, the United States conceded that a defendant whose liberty was in no way impaired by a pretrial delay could nevertheless succeed in a speedy trial claim if the government had intentionally caused the delay for the specific purpose of prejudicing the defense or injuring the defendant in some other significant way. The defendant in this case is not entitled to relief, the United States asserts, because the delay in bringing him to trial was, at worst, caused by negligence.
Not surprisingly, the Court seizes on this concession with relish. See ante, at 655, 656 (citing Brief for United States 28, n. 21, Tr. of Oral Arg. 28-34 (Feb. 24, 1992)). For if defendants can bring successful speedy trial claims even though they have not been "incarcerated or subjected to other substantial restrictions on their liberty," United States v. Loud Hawk, 474 U. S. 302, 312 (1986), then the Clause's protections necessarily extend beyond those core concerns. If the Clause does not protect a defendant whose liberty has not been impaired by a delay, then it simply does not protect him; its protections cannot be triggered solely by the government's bad motives. The Speedy Trial Clause provides no basis for the line the United States advances between negligent governmental conduct, on the
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