The Justice Department, in accord with longstanding principles, has either directed Jack Smith to close down his operation, or Jack Smith is in complete agreement with and already has started to wind down attempts to prosecute President-elect Donald Trump. As frustrating as many might believe this to be it is the right thing. Everything changed on election day. The Justice Department has lost the moral and legal authority to go forward. The people have spoken.
According to NBC News:
Now that Trump will become president again, DOJ officials see no room to pursue either criminal case against him — and no point in continuing to litigate them in the weeks before he takes office, the people said.
“Sensible, inevitable and unfortunate,” said former federal prosecutor Chuck Rosenberg, an NBC News contributor.
It is not like there was some big mystery behind possible charges. It is not like the American people voted without really knowing what Donald Trump had done or not done. It was laid out before them and the ultimate jury – for better or worse – has now spoken. Every notion of anything disappears in a democracy when voters speak. It just “is.”
Is it fair? That is actually easy to answer. I have no idea. Moreover, it is really a second consideration. If one holds on to the system to which we pledge ourselves, it better not come before anything else. Our criminal justice system is premised on the belief that the system must withstand any unfairness in any one crime or even a sub-principle.
But this situation rises above even the normal course of the day in our justice system. Criminals go free all the time with only a judge making the legal determination. In this instance a jury, one that includes every voter in the country, have at least had a say in the matter. And they most certainly have spoken.
This will likely be yet another column when I get bludgeoned in the comments – and it may be deserved. But there really is a higher principle involved here. It is not like any side cheated to win an election. And it’s not like we can hang on to a democracy but only when we win. It might, just might, be totally different if the results were mired in a quagmire that was manipulated to look constitutional. They are not and thus it is not. So for democracy to work, it simply must work here, and DOJ is right to pack things up without any appeal.
There is one last consideration. The Constitution and our laws do put a judge in place over cases such as this. There is a chance that a judge (Or nine) could say “A judge retains the right to look things over and decide whether bad faith entered into the matter and a criminal prosecution should go forward anyway.” I had written that IF Donald Trump ordered the investigation and case to be shut down, a judge might have the right to step in and say “No, I control the court case.” In this instance, the election is clear and it is President Biden’s decision – through the Justice Department – to yield to the normal process. It is not done by President-elect Donald Trump.
To the extent that it is not fair in this individual matter it is more than made up for in a commitment to democracy and the long-standing norms in our legal process. It is not like anyone hid the ball from the jurors. Their verdict couldn’t be clearer.
God Bless: I can be reached at [email protected] and @JasonMiciak
Corrupt, sexual molester, convicted felon, pathogical liar, delusional Trump is guilty and a disgusting disgrace. He has and will continue destroying our America along with his worthless kids. He and they will pay in the end along with his ignorant cronies and cult.
Is it fair? Absolutely not. A legal case should not be decided by the electorate. The only thing I can agree with is that Jack Smith has no options. I would leave it at that.
The bit about judges continuing cases on their own is interesting, though.
I really don’t want to be harsh so I took a bit of time to respond since you took the time to draft a thoughtful article that you knew would generate blowback. Yes, there are certain principles in play that are long-standing but bear in mind our system is, or is supposed to be based on our Constitution. It says nothing about indicting and/or trying high officials including a sitting President or Vice-President. In fact early in our history Aaron Burr, a sitting Vice-President was charged with murder for killing Alexander Hamilton in a duel – a practice which by then was illegal to take part in. The charges weren’t dropped for Constitutional reasons but because of misuse of influence of powerful people.
Yes, there have always been concerns about actions by Presidents and Vice-Presidents engaging in criminal conduct but it’s always been a political decision rather than a Constitutional or even legal (as in based in statute) matter on whether to do so. Fast forward into our liftetimes and the issue DOJ faced with Agnew and Nixon. THAT is when DOJ which had evolved into a major institution of our government came up with that OLC memo that was used both then and since to protect Presidents. It was basically a sleazy, backroom deal to give Nixon cover to force Agnew’s resignation. Even the author tasked with drafting it has said pretty much so. However, it’s taken on a life of it’s own and treated as if if was a specific provision in the Constitution.
One can with good faith debate whether it’s practical or a good thing for a President (or VP) to face criminal charges in the justice system. However what Nixon/Watergate created (to many of us) was what became a massive shift in power from the Congress and to some degree the courts to the Presidency. THAT, a President with too much power is EXACTLY what the framers of our Constitution feared and worked very, VERY hard to prevent.
However, the OLC memo is ONLY that. A MEMO based on shaky legal reasoning with no basis in the law or Constitution. It’s occurred to me that part of why Roberts insisted on writing the immunity decision and made it breathtaking in scope was precisely because he knew that OLC memo was only a hastily worked out political maneuver. He’s a disciple of The Federalist Society which believes in the “Unitary Executive Theory” of Presidents having pretty much unchecked power. Well, they believe in it if a Republican is President. They’d HOWL if a Democrat treated the office that way and to a degree have when Democratic Presidents have done what their own have done with say “signing statements” when signing legislation into law. Well, that’s an even longer thing to get into than my main point.
From where I sit your premise is built on a faulty assumption. It’s that the American people have spoken as a jury would and rendered a verdict. I disagree. Vehemently. Think back to 2020 and all those court challenges that Trump LOST. His lawyers (and Trump) made all kinds of statements on courthouse steps and on news shows and in articles BUT in actual court where there are rules about evidence and standing didn’t say ANY of that sh*t. Judges, almost all of them don’t treat lawyers who pull that crap in court well. Once proceedings are underway a lawyer had damned well better have admissible evidence and follow the rules of court proceedings. If not they get tossed out on their ass. Sometimes they wind up being sanctioned in some way.
The point is that making a case on TV or via use of the news is NOT making a case in court. Again, not all judges are good ones but most of them try to make the process fair and ensure the rules are followed. Juries can be and sometimes are swayed by outside influences but most make an honest effort to follow standard jury instructions judges always give to ONLY consider the evidence admitted during court proceedings when coming to a verdict. That’s true in civil as well as criminal cases. But for all a juror may hear or read prior to sitting in the jury box and watching/listening to both sides make their case the fact is that NOTHING is evidence of guilt or innocence until it is admitted in court and the other side has a chance to challenge it.
Yes, we have seen “speaking indictments” in the cases against Trump and others, It’s a practice that’s been used long before all the Trump stuff. However such indictments are lengthy and take time to read and digest. I rather enjoy legal stuff and I have my eyes glaze over at times. The average member of the public will never take the time to read, and then print out one of these things and then grab a highlighter and go to work. And start making notes so they can more closely check (or cross-check) different parts of a long legal brief. Good court reporters can make a case come alive while it is being tried in federal court where cameras and even audio feeds aren’t allowed.
Also keep in mind that even the superseding “speaking indictment” doesn’t contain all the evidence against Trump! The public has NOT seen the case against Trump. The evidence. (Nor it being challenged and whether Trump’s lawyers could poke holes in it I must add – but history shows they fail because Team Trump doesn’t have a leg to stand on)
Without seeing the evidence as it should have been presented in court how the hell can one say the public was able to reach a “verdict” in the cases against Trump? I’m sorry but I simply can’t accept your belief that the voters acted as a jury and rendered a verdict. This is NOT some celebrity ersatz TV court like Judge Judy. These are CRIMINAL charges and damned serious ones that should have been heard in court well before the election. Trump knew how bad that would be for him which is why he fought so hard to keep it all hidden.
He IS good, even great at PR and that’s the ONLY “evidence” the voters actually got to see. It’s a travesty of justice that Trump was able to game the system the way he did. It was made worse by the COWARDICE of McConnell and the Senate and then by AG Garland for waiting so long to appoint a Special Prosecutor. Had Garland had more guts, and been more concerned with the public good instead of compromising to avoid criticism of DOJ (like THAT worked!) there would have been time for both the FL and DC cases to get to trial.
And once actual evidence had been presented in court including from witnesses who’s names have remained redacted along with some of their grand jury testimony/evidence it would be public record. Only THEN would the public be able to render a “verdict” with their vote. However, it now seems it will all be swept under the rug. Perhaps it all will be loaded onto flash drives and locked away in Swiss bank’s saftety deposit boxes so in a generation or two it can be accessed by historians (after the witnesses and frankly all of us are dead and gone) and people will say OMFG! How was this all swept under the rug? And, history will look back at US the way it marvels at Germany in the 1930s. How capitulation (out of anger and fear) to a tin-pot dictator led to world-wide devastation.
But that’s what’s happening as I write this. DOJ is working furiously to bury the whole, sordid thing. But I’ll guarantee you this. If it were the other way around and it was Trump and his AG during the transition period it would be full steam ahead. If it came down to it they’d release EVERY bit of evidence and grand jury testimony. But our side respects the “rules” so the country and world will suffer in ways that can’t yet be imagined.
I DO believe in the system and respect for our institutions and norms. But if only ONE side does so (and that’s the case here) then the system and norms being protected aren’t really norms.
A great response Denis. Public opinion is nOT a court of law. If Trump has committed crimes, and it sure does look like it, then he SHOULD be prosecuted.
Just like he would be on the TV series ‘Law & Order’, everyone can see that.
This issue does bring up another one, US security. With Trump in charge, NATO is over, and so is the intelligence sharing arrangement with the other English language countries, the Five Eyes Alliance. The damage this will do to US security interests is incalculable, but there is no way now, after seeing what Trump did that the USA will ever be trusted with intelligence secrets again by US (former?) allies. This one issue will do more harm to the USA than any other.
But Putin will be happy.
Nice country you had there. It’s a shame something happened to it. Welcome to the third world….
Trump can’t be a king a prince or a duke because he won’t be ruling over a kingdom, a principality or a duchy.
However, as you said, he has a nice country
‘Principals?’…that day has passed. Our majority decided the nazis were right after all. That piece of paper we so revere will be used as toilet paper by Trump. The day of acting by principles died so now you’re not fighting anymore? When does the Supreme Court building get renamed TRUMP’S HALL OF JUSTICE?
I’m sorry, but I strongly disagree. Trump will not take office until January 20th (if he doesn’t overindulge in his favorite junk food) so he’s NOT the President. There’s NOTHING in the Constitution that even discusses the concept of “President-Elect” (and let’s not forget that until 1933, Inauguration Day was in early March–it took an amendment to change that date; for what it’s worth, the date became effective on Jan 23, 1933 some 5 1/2 weeks before FDR began his first term). The “President-Elect” has ZERO authority and ZERO power until he becomes THE President.
Additionally, criminal actions are tried in a COURTROOM in front of a single judge and a jury, and NOT the “court of public opinion.” (Let’s not forget that OJ was found “not guilty” by the jury who heard his case but the “court of public opinion” determined he was guilty. OJ didn’t just get to go on with his life as before. He lost endorsement deals during the period in which he was merely accused but he didn’t get a single offer to endorse anything after the trial was over. Even though the jury declared him “not guilty,” the rest of society–that “court of public opinion”–chose to not agree with that.)
There’s still a full month before the Electoral College meets to “formalize” the vote and then there’s nearly another full month before the Congress makes it fully official.
Trump–if he had an ounce of real moral fiber–would offer to go ahead and stand trial as the fat ass spent the better part of the past two years delaying the cases and *using* his run for President AS the reason the cases should be delayed. To hell with Trump’s supporters and voters (I really wish the whole lot of them had followed his COVID advice and drunk bleach to “cure” them).
I could go a bit further with my feelings but I enjoy posting here and what I really feel about Trump and the GOP and those f*cking braindead people who voted for them would definitely get me banned. (There’s a part of me that kind of hopes Jimmy Carter dies in the next month or so just so the man will get the state funeral and recognition he so rightly deserves because if he doesn’t die until after Trump craps on the Constitution, Trump won’t even consider the honorable thing and provide the proper funeral honors.)
Surely the main question here is why did it take 3 3/4 years to get to this point. I know the wheels of justice turn slowly, but this is just crazy. The Orange idiot should be in prison now.
I lay the blame here squarely at Garlands feet.
He should’ve had JS on board and briefed immediately after Jan 6th 2021.
Find out who is responsible and prosecute to the fullest extent of the law.
B
You’re 100% wrong about Garland. He sprung into action on January 6th having his special agents gathering evidence, interviewing witnesses. That included prosecuting crime scene defendants and getting evidence from them to tie their actions to Trump.
That included seizing phones from Proud Boy Tarrio’s phone, exploiting the phone Trump used on J6, and exploiting the information off Mike Roman’s phone. That including obtaining Pence’s testimony under subpoena. Those are not even half of the evidence & witness gathering that needed to take place before Trump could be charged & convicted.
The J6 Committee caused over 3 months delay in withholding transcripts before generating a weak referral document that was of almost no use to Garland & Smith. COVID slowed down obtaining evidence for the investigation. Mitch McConnell did everything he could in Congress to stop & slow down all proceeding in the Congress. Trump’s lawyers did everything they could to delay for months. It took 10 months to get privileged waived testimony from necessary witnesses. Elon Musk delayed responding to a subpoena for 23 days to turn over metadata for tweets by Trump & others from Twitter. But worst of all, after all the above, John Roberts, Trump’s SCOTUS lapboy, chose to delay the legal questions for 8 months, from December 2023 to August 2024.
It was not until August 7th that the legal path was cleared to charge Trump with Citing an Insurrection – which if convicted disqualifies him for holding office. No law says anything about running for office.
So you can only accuse Garland for delaying since August 7th. Before then all the delays were caused by Traitor Trump & his co-conspirators. There is still no law that prevents Garland & Smith from charging & convicting Trump before he takes office, but realistically even from August 7th – its impossible to charge try & convict Trump without more delays by Trump & SCOTUS pushing this into mid 2025. That’s why John Roberts did nothing for 8 months till August 7.
Which is why a Special Counsel able to wield subpoena power was needed early on. It took a lot of DOJ manpower to go after all those small fry defendants but we knew the relative handful of major players at the top even before Biden was sworn in. I for one think the dynamic between the J6 Committee and a Special Counsel would have been different and frankly mutually productive. Much more so than it was with rank and file DOJ lawyer and with Garland keeping well away from things. His doing so was proper of course, which is EXACTLY why he should have appointed a Special Counsel within the first few months.
Agree that things had a chance to move faster if Garland had appointed Jack Smith earlier. But this is unfortunately how bureaucracies work. In usual cases govt. enforcement agencies always wait until they gather the supporting evidence first before justifying escalating. And there would have been a ton of internal push-back deviating from the norm considering this is a President and comes with tremendous distractions including politics and public opinion. Of course these seem like pallid excuses given J6. And nothing about this case is or was normal – which of course should have justified appointing an experienced criminal attorney like Smith early on to coordinate. But hindsight is always 20/20 and no one including Garland at that time would have anticipated Trump would be able to control SCOTUS like a puppet stalling & bending their decisions to his will to stall just enough to give Trump a path to getting the charges dropped if he won re-election.
One more thing: The policy you act as if it is too sacrosanct to deviate from was adopted from a Memo written for AG Janet Reno by Randolph D. Moss of OLC on October 16, 2000. The entire purpose of the memo was based upon the concern that “…indictment or prosecution of a sitting President would unconstitutionally undermine the capacity of the Executive Branch to perform its constitutionally assigned functions.”
A lot has changed since 2000. No one back then could possibly envision an outgoing POTUS (Trump) doing everything possible to block the normal smooth transfer of power as Trump did in 2017. This was thought inconceivable 24 years ago.
Remember how Trump and his executive staff did everything they could to undermine Biden’s incoming executive staff to block their performance of THEIR constitutionally assigned functions? 2 examples: (1) Not briefing Biden & his staff at all … including no mention he had just negotiated with anti-American Taliban terrorists, causing them to be released from prisons in Afghanistan & was simultaneously pulling US troops out of both Afghanistan & Somalia – letting the terrorists overrun both nations & leaving Biden to scramble to clean up the mess. (2) Padlocking the White House to prevent Biden’s staff from moving in.
Do you really think this policy is worth falling on your sword to apply it to anti-American fascists …. who would rather defecate on the Constitution then follow it?
Surely, anything Garland, Smith and Biden can do to ignore this memo and thwart Trump from installing his fascist anti-Constitutional regime would be applauded by every ex-President and every true American patriot.
Especially, if doing so later delays even one little bit Trump from implementing what he is planning at this very moment. One of which he’s currently having his incoming executive staff do is compile lists from social media of persons posting against Trump. He then plans to later send his newly formed “Schutzstaffel” to round up, arrest, & imprison anyone on this lists he considers a lead agitator enemy social media poster.
Certainly Biden is right now very busy meeting with legal experts and other experts brainstorming all things possible that will stall implementing Trump’s GOP-Nazi plans that can’t easily be reversed. One for example: appointing and having confirmed as many Judges as possible at the federal level before Trump becomes our first dictator of the US who aren’t or won’t be bought off by Trump & who aren’t afraid defending democracy against Trump & his fascist administration.
I wonder if there is a way these federal cases, which haven’t gone to trial can be mothballed, out of reach of a Trump DOJ, then revived in 2029 when, hopefully saner heads will prevail?
I doubt tRump will still be alive by then.
You assume Trump, or Vance if Trump’s habits finally catch up to him and he croaks will cede power. No, once the GOP has it they aren’t about to give it up. Even if elections are held they’ll be a joke. Rigged, just like in authoritarian countries like Russia. Our ONLY hope is that we managed to eke out control of the House, and we manage to have a free and fair midterm election in 2026 and a more favorable Senate map that might get us back control there too. Even so, thanks to SCOTUS Trump (or Vance) can basically declare no elections in 2028. People haven’t thought things through, because this isn’t the America I grew up in. This is a spoiled, whiny and petulant country and a majority (not a huge one but still a majority) have chosen the same to be President again.
A Trump DOJ could move to have the charges dismissed with Prejudice and I don’t think a judge could do a thing about it. That will be that.
What about Ginni Thomas, Jeffrey Clark, and the other co-conspirators? Smith surely has evidence against them. I get why he didn’t want to complicate the case against Trump, but since that’s off table, let’s indict and have trials for the others. Yes, the new AG will intervene, but we deserve to know the facts about their involvement.
Your premise falls apart instantly because the DOJ Policy you cite is just that – policy not law. It doesn’t set any legal precedent. It doesn’t become case law. There is no written recorded decision. All US criminal enforcement agencies including the DOJ use what termed “enforcement discretion” when applying policies. Policies are ignored all the law under exceptional circumstances. Hell, Bill Barr, who was hired as Trump’s 3rd AG after he fired the first 2 for refusing to act as his personal attorney instead of the US attorney, absolutely threw the entire DOJ policy book away after lighting in on fire.
No President has ever incited an insurrection after all his other illegal attempts failed to stop the peaceful transfer of power to the new elected President. If that’s not exceptional, nothing is.
Smith has an duty (not an option) to charge Donald John Trump with Citing an Insurrection Under Section 3 of USC 2383. Democracy depends upon it. If the Democrats don’t win the House there were be ZERO Guardrails to stop the instant changeover to a fascist regime in which a DOJ or SCOTUS or Congress eventually becomes irrelevant. The evidence & witnesses have been established to proceed to charge Donald J. Trump with Insurrection which disqualifies him for holding public office once convicted. After 2.5 years of a fumbled referral by the J6 Committee, stalling by Mitch McConnell, Trump’s Attorneys, The Supreme Court and Elon Musk, John Roberts finally cleared a legal path to charge Trump on August 7. Why Garland & Smith did not act sooner after August 7th is beyond me.
Is is going to happen, probably not. But there is another DOJ option part of the same policy that may be invoked to set forth in a DOJ memo all the evidence & witnesses supporting Donald John Trump’s violation of citing an Insurrection Under Section 3 of USC 2383; and then releasing it to the public for historical purposes. That should occur.
There are still the NY state charges. He can’t shut them down. In late November, he still.has a sentencing date, and I hope the judge sentences him to prison time to be served after his 4years as president
And I wonder if Jack Smith can reopen the cases if a Dem wins.
Re: the NY charges, you’re correct Trump can’t currently shut them down but I don’t put it past Trump and his new yet to be named AG to attempt to have his bought-off SCOTUS make some new ruling which overturns NY’s law. But that will take some time to pull off.
The current law in place in NY is all because former Gov. Andrew Cuomo in October 2019 signed the law that closed the double jeopardy loophole law that would have precluded NY from moving forward if there was a federal case involving similar violations. That was passed by the NY Legislature specifically with the prosecution of Trump in mind.
That law was passed in NY in response to Trump’s actions to significantly reduce federal tax monies flowing back to NY State. Later Cuomo also criticized Trump for his non-response to COVID which allowed thousands of extra New Yorkers to die.
Trump then retaliated by illegally ending the 2020 Census early before all the persons were counted in NY with NY at 89 persons short of retaining the same number of US house seats.
This led to the 2022 loss of 1 Dem seat when 2 Dem districts were combined; plus the loss of 4 more Dem seats that flipped to Republican after the redrawn gerrymandered boundaries favoring republicans were in place for the 2022 midterm elections. All that precipitated in the Dems losing the US House majority starting in January 2023.
With 3 or those 4 NY seats now (Nov. 5) flipped back to Dem after the R gerrymandered boundaries were redrawn to make them more neutral following Dem litigation – plus the Alabama R-D flip, holding out hope that Dems will take back the House once all the remaining votes are counted out west.
Re: if a Dem wins the Presidential election in 2029 (assuming there is one and the GOP President (Trump or Vance) doesn’t appoint himself President for life like Putin) and the cases are closed, my understanding is it depends upon how they are closed, but most legal experts seem to be saying the AG at that time could not prosecute those cases. It’s never happened before so there is a difference of interpretation. However, many are speculating that Vance will eventually invoke Article 25 become President and then pardon Trump, which would absolutely end any possibility of reopening the federal cases. Then there’s the very good chance that Trump won’t survive until 2029, and no legal action is taken against a dead person that I have ever heard about.
I live in CD NY-04, which was flipped by the GOP in 2022. The district was red when we moved here in 1972, and the longtime representative held the seat to retirement in the 1990s, succeeded by another Repub. One of the earliest multiple shooting incidents took place in December, 1993 on a crowded commuter train running between stops, and the widow of one of the victims, whose son was also seriously injured in the attack, was motivated to become an advocate for improved weapons control. The freshman representative unceremoniously declined to support her advocacy. To that point, she was a registered Repub, but she changed her registration, ran for the seat, and made the freshman congressman a single termer. Carolyn McCarthy went on to serve nine terms before retiring, and was succeeded by the former county DA Kathleen Rice, who held the seat for another 8 years before retiring in 2023.
The Dem candidate selected to succeed her was the former town supervisor Laura Gillen, the first Dem to hold that post in 112 years (in 2017). NY-04 was one of the seats flipped in 2022 by the GOP screaming about “out of control crime” and “cashless bail”. IIRC, the margin of victory was around 2300 votes – a couple thousand Democrats stayed home. By contrast, in running for the seat this year, her margin over victory is a little over 6000, Once again the freshman GOP rep held the seat for only a single term.
Hopefully, the seats flipped back here in NY will help make Hakeem Jeffries Speaker of the House and give us a blocking factor against unbridled MAGAism.
I looked and LOOKED for any statement that a president-elect has the power of that office as soon as the votes are counted, in my little blue book of our Constitution …
I NEVER found ANYTHING that would preclude sending Trump to prison for his already jury-decided 32 counts of being a convicted felon …
Hence, he should be sentenced to the maximum rule of law … NO special deals allowed, no more delays, full strikes against his businesses and full pay-ups for any fines levied against him, including interest on his mouth running at every turn even when under a gag order …
Trump has slimed out of more guilty situations, simply by ignoring charges, doing nothing, paying nothing, because of Republican supports and the fear that Trump MIGHT do something to those that witness his crimes …
THIS TIME, he has run the gauntlet to the hilt, actually become a CONVICTED FELON in a full jury decision, by numbers 1-32, NO ONE is above the law of our precious country, his win of the election does NOT automatically make him magically a sitting president … My little blue book actually says that does NOT happen until he would be sworn to uphold our Constitution … I suspect Trump might actually snicker some at that formality …