Justice Delayed Was Indeed Justice Denied
...corrupt judges and a feckless Attorney General denied justice and puts America at existential risk
Jack Smith Seeks Dismissal of January 6 Coup Attempt and Classified Documents Cases…
…Citing DOJ Rules, NOT a Weak Case.
The special counsel Jack Smith asked two courts on Monday to effectively shut down the federal criminal cases he brought against President-elect Donald J. Trump,… bowing to a Justice Department policy that says it is unconstitutional to pursue prosecutions against sitting presidents.
[This amounted to] an acknowledgment that Mr. Trump will re-enter the White House in January unburdened by federal efforts to hold him accountable [for] plotting to subvert the last presidential election and holding on to a trove of highly classified material following his [exit from] office.
In seeking the dismissals, Smith made it clear that the government believed in Trump’s guilt and the strength of its case; and that the DOJ ruling is the only reason he sought its withdrawal. Smith wrote:
OLC’s [Office of Legal Counsel] prior opinions concerning the Constitution’s prohibition on federal indictment and prosecution of a sitting President apply to this situation and that as a result this prosecution must be dismissed before the defendant is inaugurated. That prohibition is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution, which the Government stands fully behind. Based on the Department’s interpretation of the Constitution, the Government moves for dismissal without prejudice1…(Emphasis mine).
Smith was appointed as special counsel two years ago (November 18, 2022) and quickly pulled together two prosecutions that independant legal experts saw as intensely compelling. They univerally believed that the documents case was “open and shut.” The case regarding the sprawling, multi-faceted attempted coup was also extremely well documented.
How expeditious was the work of Smith and his team?
By June 8, 2023 — less than 7 months from the date of his appointment — a grand jury in the Southern Florida U.S. District Court indicted Trump on 37 felony counts in the documents case….Less than two months later…
On August 1, 2023, a grand jury for the District of Columbia U.S. District Court issued an indictment on multiple counts related to the attempted coup.2
Deny, Call it “Political” and Delay, Delay, Delay
Trump’s lawyers had no real defense on the facts or the merit, so their strategy was to gum up the works with procedural appeals and delay tactics, hoping to push trial dates into election season and perhaps until after the election, realizing that if he were to win Trump could get the cases dropped by “his” Justice Department.
One strand of the delay strategy was to claim that Trump, as president, had immunity for his actions. That motion delayed both trials.
The trial judge in the J6 case emphatically said “NO” on December 1, 2023. From there, “…Special Counsel Jack Smith asked the Supreme Court to follow the Nixon precedent (blogger’s note: which gave congressional investigators access to White House tape recordings) and take the case directly. The Court chose not to, (emphasis mine)”3 insisting on letting the appeals court rule.
SCOTUS and Cannon Complicit
The three judges on the appeals court were unanimous in their agreement with the trial court — striking down the immunity claim — despite the presence of a Trump-appointed judge on that panel. But that step had cost 66 days (decision issued Feb. 6, 2024).
Smith asked the Supreme Court to avoid further delay and let the appellate decision stand. They took 22 days…and decided to have their say.4
“…And then, perhaps most remarkable of all, the Court chose to set the oral argument for April 22—54 days from its decision to take the case. The same Court that took 54 days to hear and decide Nixon’s case from soup to nuts has just scheduled 54 days of mere waiting around for briefing before oral argument—briefing in a case that has been fully briefed twice before and in which appeal arguments could be filed within a week at most. Total time from district-court decision to argument in front of the Supreme Court: 152 days.” (Emphasis mine.) — Rosenweig Atlantic article.
From there they took until July 1 to issue their disgraceful ruling; delay of another 69 days.
The ruling forced Smith to reassess his case, deciding which charges could survive the immunity for official acts (with a ridiculous range of acts interpreted as “official”). He did that, and convened another grand jury to consider the superseding charges. This also left it up to Judge Chutkan to decide which acts were shielded by the SCOTUS immunity decision. More time passes….
This post is already getting quite lengthy, so I will let this excerpt from an earlier post descibe “judge” Cannon’s malfeasance in the documents case suffice:
Ty Cobb – formerly a White House Counsel under Trump who shielded him in those days – spoke with CNN’s Erin Burnett and was startlingly blunt in saying that he does not believe that Cannon’s missteps are due to “incompetence or inexperience,” but that she is “putting her thumb on the scale” to protect Trump. You can listen to that interview here https://www.cnn.com/videos/politics/2024/04/03/judge-cannon-classified-documents-trump-ty-cobb-ebof-vpx.cnn and you can read more here and here.
In short, this week’s withdrawal of the cases was due to the clock simply running out. Just as Trump, SCOTUS, and Cannon intended.
…But the real blame for this affront to democracy lies with an Attorney General (Merrick Garland) who (ironically) seems to have wanted to appear above politics
The DOJ filed hundreds of cases against the footsoldiers — the MAGA-morons who believed his lies, or stayed willfully ignorant — invaded the Capitol, and even rolled up the leaders of the thuggish militias who responed to Trump’s call to “stand back and stand by” order.
But action against the Republican congressmen who conspired with him (and reportedly sought pardons from Trump); the attorneys like Eastman, Giuliani, Cheseboro, Clark, Powell, Mitchell, and others such as Mark Meadows and Steve Bannon, who “masterminded” the strategy and legal maneuvering was sorely lacking.
As it was, of course, for the Mob Boss himself. Until Smith appeared on the scene.
665 days into Garland’s tenure. 665 days wasted because he did not want the justice department to “look political,” even to the point of seemingly ignoring the plotters of the most egregious attack on the American government and American democracy in our history.
And for this, he and the Department were unceasingly charged with “weaponizing the Department of Justice,” and “election interference,” and “political prosecution.” In fact, he and “Joe Biden’s Department of Justice” were accused by Republican congressmen (who knew better?) and right wing media for state cases that had NOTHING TO DO WITH the DOJ.
So, Trump will again be entering the White House, not the Big House, as adherence to the rule of law would have dictated. And he is assembling a team that is populated by oligarchs, miscreants, and n’er-do-wells more suited to ending American properity and freedom than to advancing them.
Former congressman Mondaire Jones told CNN that dropping the case “…cements Merrick Garland’s legacy as being the most ineffective attorney general of the United States in modern history because he waited so long to open these investigations such that we find ourselves at this point.”
I can’t disagree. I hope the history books don’t tell us that Garland’s timidity and inaction led to the destruction of his country. Just as Putin hoped for when he launched his greatest KGB trick, helping Trump triumph in 2016.
That is, holds out the — admittedly remote — possibility that the case could be resumed after Trump leaves the Presidency.
A large credit for the alacrity of the construction of this case goes to the work of the January 6 committee (“The House Select Committee to Investigate the January 6th Attack on the United States Capitol”) whose report was thorough and detailed despite their inability to interview some of the key conspirators (Representatives Scott Perry, Jim Jordan, and Kevin McCarthy — among others — who defied subpoenas and would not say what they knew.
Paul Rosenweig in The Atlantic, March 1, 2024. Note that Rosenweig is no liberal firebrand. He was the deputy assistant secretary for policy in the George W. Bush Department of Homeland Security, and earlier in his career served as a senior counsel in the investigation of President Bill Clinton.
As I wrote earlier this year in SCOTUS an accomplice in Trump delay strategy?: SCOTUS could have let the appeals court unanimous decision against Trump stand, given that the DC Court of Appeals unanimously upheld the trial judge’s ruling. In fact, many court observers were surprised by the court’s decision to take it, given the “masterful” (according to very conservative former judge Michael Luttig…listen here) decision written by the DC Appeals Court.