Consider this a Thanksgiving surprise, as Merrick Garland’s turkey of a lawfare case gets an early axe. Special counsel Jack Smith had requested and received a delay until next Monday to determine how and whether to proceed with the one remaining indictment against Donald Trump for election interference.
Instead, Smith moved to dismiss it a week early, and that matters:
Special counsel Jack Smith has moved to dismiss his federal election interference case against President-elect Donald Trump due to a long-standing Justice Department policy that bars the prosecution of a sitting president.
Nearly 16 months after a grand jury first indicted Trump over his alleged efforts to unlawfully overturn the results of the 2020 election, Smith has asked U.S. District Judge Tanya Chutkan to throw out the case ahead of Trump’s impending inauguration, according to a motion filed Monday.
It’s not quite a full withdrawal. The Washington Post reports that Smith requested a dismissal without prejudice, which means the same charges could get filed after Trump leaves office. That seems highly unlikely, but the potential would remain — unless …
Smith asked U.S. District Judge Tanya S. Chutkan to dismiss the case without prejudice, acknowledging that Justice Department policy prohibits prosecuting a sitting president. If she does that, it leaves open the possibility that prosecutors could again bring charges once Trump leaves office after his second White House term.
But legal experts said it’s possible that once in office, Trump could do something that has never been tested before: Pardon himself to foreclose the possibility of legal jeopardy in the future.
We’ll get back to the pardon issue in a moment. The first question would be why Smith is asking for a dismissal without prejudice at this stage of court proceedings. There are already a number of issues with the case in front of Chutkan, especially given the limited immunity recognized by the Supreme Court in Trump v US earlier this year. There are also questions raised about the legitimacy of Smith’s appointment as special counsel, an issue which led to the dismissal of Smith’s indictment in Florida.
An indictment dismissed without prejudice usually means that a prosecutor intends to refile the complaint at some point after resolving technical issues with the case. Smith won’t even be around after January. So what’s the point, especially since the statute of limitation would moot a new indictment anyway? This isn’t a case of suspending a prosecution; the DoJ would have to get a new indictment eight years after the alleged crimes took place. The statute of limitation for most federal crimes is five years.
Chutkan could just dismiss the case with prejudice on her own volition, and put an end to this chapter of Lawfare Democrat Style. She should do so, but I somehow doubt she will. That would obviate the need for a self-pardon and save us from further constitutional “crises,” but Chutkan has never had that as her focus.
Why did Smith jump the gun on the December 2 court date? ABC suggests that Smith is trying to beat the clock to get a report into Merrick Garland’s hands before the inauguration of Donald Trump:
Getting this filing in a week ahead of schedule now raises the question of whether Smith will be able to beat the clock to officially close his office down and submitting his final report to Attorney General Merrick Garland — as is required of him per the DOJ’s special counsel regulations — before Inauguration Day.
The final report will have to go through a classification review by the intelligence community, a process that can sometimes take weeks before it is approved for any kind of public release.
In other words, Smith wants the last word. Stay classy, lawfarers.
Addendum: Trump isn’t the only person who can end this circus with a federal pardon. Joe Biden could pardon Trump, as Marc Thiessen and Danielle Pletka argue today in the Washington Post. If Biden really wants to unite and heal the nation, this would be the moment:
He is 82 years old, entering the sunset of his presidency and public life. Because he is never running for office again, he can endure the blowback from the left wing of his party, rise to the moment and clean up this mess for both our parties and for the country.
He can also burnish his own legacy in the process. History will not be kind of Biden’s presidency. He presided over one of the worst foreign policy disasters in U.S. history in Afghanistan, the spread of war on two continents, the worst inflation in 40 years, and the worst peacetime border crisis in the country’s history. And his failure to step aside earlier in his tenure set his party up for failure at the ballot box this month. As a result, he will leave the White House as one of the most unpopular presidents since World War II.
But if he pardons Trump, he will be remembered by history for a final act of statesmanship that brought a divided America together.
Well, maybe. Gerald Ford pardoned his predecessor, and history hasn’t remembered him kindly for that act yet. Of course, Richard Nixon appointed Ford as VP, and the impression was that he got a quid pro quo pardon, which is terribly unfair to Ford. But Chutkan has an opportunity to moot that altogether first.
Update: The initial story related only to the January 6-related indictments. However, Smith has also filed notice that he will abandon the appeal of the earlier dismissal of his Florida classified-documents indictment:
Federal prosecutors moved Monday to abandon the classified documents case against President-elect Donald Trump in light of longstanding Justice Department policy that says sitting presidents cannot face criminal prosecution.
The announcement in an appeals court filing in Florida came shortly after a similar filing was made by prosecutors in Washington, D.C., where they asked to dismiss the case accusing Trump of plotting to overturn the 2020 election.
A jury of 150 million American voters have rendered their verdict on lawfare. One interesting aspect of this abandoned appeal, though, is that Judge Aileen Cannon’s ruling on Smith’s appointment won’t become precedential. The 11th Circuit could have agreed with Cannon’s reasoning that the appointment violated the Constitution, which would have limited future special-counsel appointments. Now it remains another academic question.
Read the full article here