The unexpected spotlight on the Manhattan case had the effect of discrediting the entire enterprise in the public mind.
The unexpected spotlight on the Manhattan case had the effect of discrediting the entire enterprise in the public mind.
Author’s Note: This is the second part of a two-part series. The first part can be found here.
W ith President Joe Biden having withdrawn from the 2024 presidential campaign, the collapse of the Democrats’ lawfare crusade against the Republican nominee, former president Donald Trump, takes on added significance. Lawfare was not just the plan for making Trump conclusively unelectable; it was the plan for keeping Biden out of the public eye — for maintaining the spotlight on Trump because Democrats have known Biden was declining mentally and physically.
I contended in Part 1 of this series that there are several reasons why lawfare has failed. We’ve discussed how the strategy, as implemented, offends the public’s sense of fairness. We’ve also detailed the culpability of Attorney General Merrick Garland and his appointed special counsel, Jack Smith — the appointment’s political motivations and constitutional infirmity.
Let’s now continue addressing the legal and strategic flaws in the two federal indictments Smith filed, the election-interference case in Washington, D.C., and the Mar-a-Lago documents case in Florida. We’ve talked about the dubious stretching of criminal statutes in the former, and, in the latter, the decision to include 32 Espionage Act counts rather than charging a narrow obstruction case. Now, we turn to Smith’s failure to think through a critical issue: Trump’s claim of immunity from criminal prosecution.
Immunity
Unlike nearly all issues in federal criminal cases, immunity disputes are appealable pretrial. And because Trump’s prosecutions had implications not merely for Trump, but for the effective functioning of the presidency in our constitutional framework, there was always a possibility that the Supreme Court would agree to consider the immunity issue pretrial. Smith seems not to have factored in this possibility, or at least not to have appreciated its ramifications. In federal law, a case is litigated before only one court at a time; ergo, once the appellate courts got involved in the election-interference case, proceedings before Judge Tanya Chutkan in the district court would be suspended for months. Not only did that render absurd Smith’s insistence that the trial could start in March 2024. The inevitable delay would make it difficult, if not impossible, to get the case to trial pre-Election Day, even if the Supreme Court did not rule Trump’s way on immunity. (It ended up ruling Trump’s way.)
This makes Smith’s Mar-a-Lago indictment even more inexplicable. Immunity would inevitably be an issue in Florida, too: Trump came into possession of the documents and shipped them to his Palm Beach resort estate while he was president. He (dubiously) claims to have deemed them personal property and declassified them while he was president. All of this implicates official executive acts; as we’ve seen in the Washington case, that portends pretrial appeals and months of delay if the prosecutor insists on trying to use official acts as evidence in the case. All the more reason, then, for Smith to shed the classified-documents charges and just indict an obstruction case. Again, the obstruction charges involve only post-presidential conduct, not official acts; there is a good chance he could have gotten such a straightforward case to trial — no immunity issues, no CIPA, no pretrial appeals.
Now, let’s factor in an unanticipated development, something prosecutors must always be ready for — in law enforcement as in life, nothing ever goes completely according to plan. It turned out that Biden had committed the same Espionage Act offenses as Trump. In fact, there was decades’ worth of evidence, sufficient to show the president was guilty as the day is long. But having indicted Trump on 32 such counts, the same Biden Justice Department — i.e., Garland, supervising a special counsel — conveniently decided that Biden should not be charged at all.
This development rendered the Mar-a-Lago case an even more invidious selective prosecution than it had appeared to be at first blush — thanks to the Obama–Biden DOJ’s 2016 decision not to charge Trump’s then-rival, Hillary Clinton, on either Espionage Act or obstruction offenses arising out of her emails scandal. All the more reason to slash the classified-information counts and just make an obstruction case against Trump. And yet, Smith and Garland couldn’t bring themselves to do it. Not even after the Supreme Court’s immunity ruling almost three weeks ago.
That ruling made it unavoidable that the Espionage Act charges, besides their inherent CIPA complications, would now trigger months of delay while Trump’s immunity claims were litigated. If Trump won the election, there would be little to no chance that the Mar-a-Lago prosecution would still be extant by the time those claims were decided — Trump’s Justice Department would drop the case. So common sense said there was only one thing to do: Ditch the Espionage Act, strip the indictment down to obstruction, and ask Judge Aileen Cannon to go to trial on that.
Appointments Clause
But Garland and Smith were too headstrong to do that — or at least to do it in time. This past Monday, the appointments-clause time bomb that Garland gratuitously planted in the case (as we discussed in Part 1) detonated. Judge Cannon threw the case out because Smith is not constitutionally qualified to wield powers equivalent to those of district U.S. attorneys (who, unlike Smith, are appointed by statute, nominated by the president, and confirmed by the Senate). The government should have known this was coming. Not only was there a strong argument against Smith’s appointment, posited in amicus briefs by prominent legal scholars. That argument had been adopted by Justice Clarence Thomas, the country’s most influential living originalist, in a concurring opinion just two weeks earlier in the immunity case.
As I’ve extensively covered, there was an easy fix to the constitutional defect. Garland just needed to transfer Smith and his staff to work under the direction of a confirmed district U.S. attorney — most readily, the Biden-appointed U.S. attorney for the Southern District of Florida, Cannon’s district. They could have gotten the case back up and running in a week. Judge Cannon made clear that she was open to remedial measures that could have cured the problem and avoided wasting 13 months of public-resource-intensive work. But in their arrogance, Garland and Smith refused to contemplate the very real possibility that Cannon would rule against the government; they declined to take or even propose curative measures. Stamping their feet, they’ve announced an appeal — which, even if Trump loses the election, will entail a year or more of delay, at the end of which the Justice Department will probably lose.
Bragg’s Case Becomes Lawfare’s Face
The Supreme Court’s immunity ruling is surprising in the scope of the shield it potentially provides for presidential acts. It is not surprising, though, that the Court determined that (a) presidents do have some immunity, and (b) the case would have to go back to Judge Chutkan to sort out what parts of the election-interference charges implicate official acts — and once she rules, because it would still be a live immunity issue, there could be more appeals.
As a practical matter then, long before the Court finally ruled on immunity, it was clear that the suspension of the Washington case, coupled with the CIPA litigation in the Florida case, meant there would be no federal criminal trials of Trump until at least the autumn. And maybe there’d be none at all. This led to the re-emergence of the Manhattan case; that is the most ironic cause of lawfare’s failure because Trump was actually found guilty.
Even Alvin Bragg, the elected progressive Democratic district attorney who brought the Manhattan case, knew it was a travesty. He had dropped the investigation a year before bringing it, only to be goaded into reviving it by both Trump’s early announcement of his 2024 candidacy and the plaudits state attorney general Letitia James won from progressive Democrats — Bragg’s political base — for the equally absurd civil-fraud case she brought against Trump after Bragg passed on that one, too.
Bragg was the first prosecutor to indict Trump, but he is shrewd. He took a victory lap over the spring 2023 indictment, ensured that a trial was not scheduled to take place until a year later, and sat back waiting for the feds. Once Smith began filing indictments in June 2023, Bragg let it be known that he was prepared to fade to the background, to defer to Smith, and to proceed with the trial of his state case only after the federal prosecutions were completed. By then, maybe the Manhattan case would never have to be tried — and few would even have cared about it any longer.
But then the federal cases were derailed, mostly due to Smith’s missteps. This had the unintended consequence of returning Bragg’s case to center stage, all by itself.
This was a disaster for Democrats. At first, they’d been happy to have Bragg’s indictment; it may have done more than any other development to galvanize Republican support for Trump’s candidacy. Once Bragg charged Trump, no GOP candidate who might have posed more of a threat to Biden’s reelection — say, Ron DeSantis or Nikki Haley — was ever again a factor in the GOP primaries. But that said, Democrats did not actually want Bragg’s case to be tried — certainly not to be tried first, and certainly not as the only pre-election lawfare trial.
Analysts from both sides of our deep political divide recognized how embarrassingly rigged against Trump Bragg’s prosecution was. Besides Bragg’s well-known misgivings about bringing it, the indictment pled a trivial, long-stale business-records misdemeanor, time-barred under the statute of limitations, that Bragg inflated and diced into 34 felony counts based on the supposed concealment of a second crime. The state prosecutor was dodgy about identifying that second crime because, principally, it was based on federal campaign-finance law, which Bragg had no jurisdiction to enforce and which Trump hadn’t actually transgressed. A progressive prosecutor whose default mode is to resist prosecuting and to plead felonies down to misdemeanors, Bragg had thus, in the case of his party’s foremost Republican adversary, turned a dubious misdemeanor into ostensible felonies carrying well over a century in potential imprisonment. No fair-minded person believed Bragg would ever have brought such charges against anyone but Trump. It was a textbook denial of equal protection under the law.
As applied, the statute Bragg invoked did not satisfy New York vagueness standards, and the indictment did not provide adequate notice of the charges. The judge, Juan Merchan, was a partisan Democrat who had made political contributions (in violation of New York law) to Biden’s 2020 campaign against Trump, and his daughter was a progressive political operative who’d done campaign work for uber-anti-Trump Democrats, including Biden. For good measure, Bragg recruited for the trial Matthew Colangelo, a lawyer from the top echelon of the Biden Justice Department who’d previously been paid as a consultant for the Democratic National Committee.
The indictment spoke of falsifying business records in a manner that defrauded no one; but Bragg’s prosecutors told the jury the case was really about Trump’s conspiracy to steal the 2016 election — an election-denial fever dream Democrats were thus promoting even as they condemned Trump’s 2020 election denial. Bragg sought to bolster his weak case by calling an unnecessary witness, porn star Stormy Daniels, to graphically describe an 18-year-old sexual encounter with Trump — which he denies (not very convincingly), which she has previously denied, and which she described to the jury as if it were border-line non-consensual, a notion she had previously scoffed at. Judge Merchan denied Trump the right to call an impeccably qualified expert, former FEC commissioner Brad Smith, to explain why the non-disclosure agreements at issue were not cognizable campaign expenditures under federal law — even after Merchan allowed convicted perjurer, fraudster, and Trump obsessive Michael Cohen to testify as if he were a campaign-law expert, and to tell the jury he’d pled guilty to campaign charges even though that highly prejudicial evidence was not admissible against Trump. Finally, Merchan instructed the jurors that they did not need to agree unanimously on what crime Trump had supposedly tried to conceal — i.e., there was no unanimous verdict beyond a reasonable doubt on the essential, hotly disputed allegation that converted the misdemeanor into a felony.
Bragg’s prosecution and Merchan’s conduct of the trial were unabashedly, willfully flawed. The media–Democrat complex instantly branded Trump a “convicted felon.” The New York Times gleefully repeated the word guilty 34 times in its lead story, as did Representative Adam Schiff (D., Calif.), the Democrats’ Trump-impeachment maven in the House. Yet the effect of the trial was precisely the opposite of what lawfare enthusiasts had sought. Not only did Trump’s standing in the polls suffer no meaningful damage (eventually, with Biden’s increasing problems, Trump’s polls edged up); his fundraising exploded.
More consequentially, the unexpected spotlight on the Bragg case had the effect of discrediting the entire lawfare enterprise in the public mind.
That impression was only enhanced by the implosion of the final lawfare prosecution against Trump, brought by Fani Willis, the elected Democratic district attorney in Fulton County, Ga. The case itself was bad enough: an election-interference indictment preposterously couched as a RICO case — as if Trump were a mafia don. But shortly after Willis began pleading out defendants on no-jail deals, underscoring the unseriousness of the case, it was revealed that she’d been conducting a romantic affair with the married prosecutor, Nathan Wade, whom she’d recruited and paid eye-popping fees — used by the couple, it appears, to take luxury vacations. Wade was disqualified and the defense motion to disqualify Willis — which failed in the trial court despite the judge’s allusion to the “odor of mendacity” from the DA’s comportment — is now being reviewed by a state appeals court, which won’t even hear arguments in the case until the month after the election. If the case ever gets back on track, there will be months of immunity litigation thanks to the Supreme Court’s recent ruling.
In the public mind, the instantiation of lawfare is the Alvin Bragg case, peppered by the Fani Willis hijinks and the Jack Smith foibles. If Smith had modestly, sensibly indicted Trump solely on the Mar-a-Lago obstruction counts, he might well have beaten Bragg to trial — at least if Garland had been willing to transfer Smith and his staff to the south Florida U.S. attorney’s supervision, to head off Trump’s appointments-clause challenge. If Trump had been convicted on those charges, the legacy of lawfare would look very different. So, probably, would the 2024 campaign.
That is the final thing worth noting. Lawfare was not just an afterthought. Democrats knew how weak Joe Biden was. Lawfare — indictment after indictment, trial after trial, conviction after conviction — was the campaign they were banking on. It was what would keep the president, in alarming decline physically and mentally, out of sight. The collapse of lawfare directly resulted in rapt public attention to Biden’s deteriorating condition and abysmal record — attention Democrats had hoped to divert by now to serial Donald Trump guilty verdicts and sentencing hearings.
They couldn’t pull it off. In the end, this sank the Biden candidacy. With Trump relatively unscathed and back to campaigning rather than tethered to courtrooms for months on end, scrutiny shifted to Biden’s infirmity. This cratered his polls. Biden was not up to a presidential debate. Had lawfare succeeded, he and his handlers would never have agreed to one — Trump would have been unelectable and Biden could have run out the clock, declining to share the stage with a multiply convicted, publicly reviled felon. When lawfare failed and the central campaign issue turned out to be Biden’s rapid decline rather than Trump’s rap sheet, it was Biden who needed the June debate. It became the death knell of his long political career.