President Biden’s Attorney General Merrick Garland appointed Special Counsel Jack Smith in November 2022. Smith was given the assignment of overseeing and prosecuting the two federal cases against Donald Trump. One case for inciting the January 6th insurrection, and one case for the theft of highly-classified documents from the White House. The cases have been handled methodically and slow-walked by the courts, with the implicit understanding that if Trump lost the election, the prosecutions would have an easier path to move forward. Well, now that Trump has won, guess what’s happening with the federal cases?
Donald Trump started this year fighting two federal prosecutions that threatened to send him to prison. But he will end it free and clear of his most significant criminal legal problems. With his resounding victory at the polls, and a longstanding Justice Department policy against prosecuting a sitting president, the key question is not if, but when, prosecutors move to dismiss or delay his federal election interference case in Washington, D.C.
Trump recently said he would fire special counsel Jack Smith “within two seconds” after he returned to the White House. Now, that won’t be necessary to bring his federal criminal troubles to an end.
Smith is taking steps to end both federal cases against Trump before the president-elect takes office, according to a source familiar with the Justice Department deliberations.
A grand jury in Washington indicted Trump this year on four felony charges in connection with his effort to cling to power in 2020, culminating in the violent siege on the U.S. Capitol on Jan. 6, 2021. Judge Tanya Chutkan had set a trial date for March 2024, but that date came and went, after the Supreme Court accepted the case and ultimately handed Trump significant immunity from prosecution for official actions he took in the White House. The judge is just now beginning to consider what parts of the prosecution’s case amount to official acts, and which are private conduct of a person seeking rather than holding office.
The Justice Department has appealed in a separate criminal case against Trump that accuses the former president of hoarding classified documents at his Mar-a-Lago resort and refusing to the return them to the FBI. Judge Aileen Cannon, who was appointed to the bench by Trump, dismissed the documents case on July 15, the first day of the Republican National Convention this year, reasoning that the way the special counsel had been appointed violates the Constitution. The Justice Department has been seeking review by a higher court, the U.S. Court of Appeals for the Eleventh Circuit.
NPR points out that it’s unlikely that Trump will even need to fire Smith on Day 1, because Smith will follow the legal precedent that sitting presidents can’t face federal prosecution. NPR also notes that the insurrection case will likely be folded up first, but the classified documents case is trickier because Smith is also prosecuting two other defendants – Trump’s aide and the property manager at Mar-a-Lago. Are we ready to have a conversation about how Merrick Garland f–ked up by not appointing a special counsel a lot sooner?
Photos courtesy of Avalon Red, Backgrid.