So Jack Smith has asked Judge Chutkan and the 11th Circuit Court of Appeals to dismiss the DoJ’s prosecution of the former president, for both the January 6th election subversion case, as well the Florida classified documents case. The January 6th case was in front of Judge Chutkan waiting for a decision possibly following briefings and maybe even hearings on whether the superseding indictment filed by the Special Counsel’s team survives the immunity tests requested by the Supreme Court in their July 1st absolute immunity opinion to be conducted before they could proceed to trial. The classified documents case was already dismissed by the Trump appointee Judge Aileen Cannon, not based on the merits of the case, but on the grounds of special counsel’s appointment and funding possibly being unconstitutional. This decision was appealed and was in front of the 11th Circuit for a decision on reversing the dismissal and potentially even reassignment of the case to another judge.
If you are familiar with the history of special counsels (or independent counsels as they were called at some point), you can skip this paragraph. But if not, please note that this was the first time in over two centuries that a judge, be it a trial or appellate judge, came to the conclusion that the appointment or funding of a special counsel may be unconstitutional. And believe it or not, this argument had been brought up by many defenders and examined by many judges over this long period of time, every time being overruled, recognizing the validity of the appointment and funding of the special counsels. In fact, concurrently with the cases being prosecuted by the special counsel Jack Smith, two other special counsels were investigating President Biden and his son. The first one was for potential mishandling of some classified documents at the time when Joe Biden was serving as vice president and immediately after leaving office. The special counsel for this investigation did not bring any charges against President Biden. The second investigation was for an omission, by President Biden’s son, in his application for a gun purchase, and hence illegally owning a gun for 11 days, for which he was also convicted by a jury. In neither of these cases, the appointment or funding of the special counsels was deemed unconstitutional. It appears that, similar to other situations, for the MAGA leader and his cult, things should be treated differently when they are applied to them vs when they are applied to the rest of the Americans. The special counsel is only illegal when they are prosecuting the MAGA leader, but they are perfectly fine if they investigate or prosecute others including President Biden and his son. The elections are rigged only when the MAGA leader loses, but they are perfectly fine when he wins.
I am not trying to defend any wrongdoing by non-MAGA portion of the US population; in my opinion it was well justified and perfectly legal for the Attorney General Merrick Garland to appoint special counsels to investigate potential wrongdoings for which President Biden and his son were accused of. I also believe that everyone, including President Biden and his family should be held accountable for any potential crime they are convicted of. My argument is that the same should have applied to the MAGA cult and its leader as well. Likewise, I am not trying to promote any conspiracy theories about major concerns or issues with the recent elections. I believe it was a perfectly fair and legal election, and there was no rigging or interference that could have changed the results. The former president won this election fair and square.
But I digress; this post was not supposed to be about the cases themselves, but about why and how we got to this point that the special counsel decided to voluntarily request that these cases to be dismissed. As to why the special counsel made this decision, we can refer to the filing itself, and note the following on the first page of the filing:
As a result of the election held on November 5, 2024, the defendant, Donald J. Trump, will be inaugurated as President on January 20, 2025. It has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting President. But the Department and the country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected President. Confronted with this unprecedented situation, the Special Counsel’s Office consulted with the Department’s Office of Legal Counsel (OLC), whose interpretation of constitutional questions such as those raised here is binding on Department prosecutors. After careful consideration, the Department has determined that OLC’s 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 prejudice of the superseding indictment under Federal Rule of Criminal Procedure 48(a).
As we see, abiding by the opinion of the OLC, the Special Counsel found himself in a position that he had no choice other than requesting the dismissal of the superseding indictment. However, please note the highlighted text from the filing, that
- Clarifies that the dismissal decision does not have any bearing on the gravity of the crimes charged, or the strength of the case, or the merits of the prosecution, and that the Special counsel as a representative of the Government stands fully behind the indictment (and is confident about the merits of the prosecution and potential conviction).
- By requesting a dismissal “without prejudice,” the Special Counsel leaves the door open for a potential future prosecution of the same case(s), since as explained later in the filing, “immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment”.
Later in the filing, the Special Counsel even addresses the concerns about the statute of limitations on these cases, and explains that “OLC recognized that the interest in avoiding a statute of limitations bar by securing an indictment during the presidency “is a legitimate one,” and it noted the possibility that a court might equitably toll the statute of limitations to permit proceeding against the President once out of office. Id. at 256; 1973 OLC Opinion at 29”.
So, not all hope is lost. Maybe, only maybe, if the president elect ever leaves office, and if by such time, there is still an independent justice system around which is not otherwise encumbered by new rulings/opinions from the conservative super-majority of the Supreme Court that, e.g., a specific president is forever immune from prosecution for any crime they commit, and if “we” are still around by such time, maybe we will finally witness justice being served, and the former president, like anyone else, being held accountable for his actions.
Now, as to how we got to this point, one could argue that if the Attorney General Merrick Garland had not waited until late 2022 to appoint the Special Counsel, the cases could have been over before the election. While there is some truth to this argument, I find it hard to blame the AG for this, as two years may have reasonably seemed a long enough time for prosecution of the cases that were so strong and straightforward. No one, including the AG, could have predicted that the Supreme Court of the United States would decide to intervene in the prosecution of these cases, and hand down an opinion that gives kings-like immunity to the president, for any crimes that they commit while in office, as long as they are part the core presidential duties (such as appointing an ambassador, even if it is, e.g., followed by and in connection with receiving a bribe), or otherwise fall within the outer perimeter of the official presidential acts. And that they would do this intervention in such a way that it introduces as much delay as possible in the process, so that the prosecutions are guaranteed to not have a chance of getting to a trial before the election. So if anyone is to be blamed for how we got here, that is not the Attorney General, nor is it the Special Counsel and his team who did their best to ensure a speedy trial. The only people to blame here are the conservative justices of the Supreme Court who, instead of siding with justice, decided to side with a political party, or even worse, with a single individual, because I don’t think any other American, including other presidents (except, of course, for the one for whom that opinion was intended), will see themselves so much above the law that will try to abuse the powers of presidency for criminal acts and then hide behind this made-up and likely unconstitutional absolute immunity. Joe Biden certainly has not, although I sincerely wished he would, or that he does while he still has time.
I still have hope. Even this current Supreme Court has sometimes decided to side with justice. For example, they refused to take on any of the sixty odd mostly frivolous cases that the former president and his cronies brought as accusations of election fraud after 2020 elections. There are still many judges at state and federal levels (appointed by presidents from both parties) that are honest and fair, and determined on administering the justice and protecting the rule of law. There are still several state attorney generals that are determined to protect the rule of law by prosecuting crimes against the people of their states, regardless of who and with which party affiliation, has committed those crimes. There are many reporters and activists who are determined to call out the wrongs and not be intimidated by the bullying of the incoming administration that anyone who criticizes the new administration may be prosecuted and put away for crimes of “treason” or “being a communist.”
So, yes, it is going to be a difficult four years (or maybe even more, who knows), but let’s not lose hope, just yet.