Look to the self-defeating machinations of Merrick Garland and Jack Smith.
Look to the self-defeating machinations of Merrick Garland and Jack Smith.
Author’s Note: This is the first column in a two-part series. The second column can be found here.
W hen someone has cheated death by centimeters despite the gunman’s having a clear shot, he’s already had all the luck he could ever hope for. Wholly apart from that, though, Donald Trump has been extraordinarily lucky in his legal enemies.
It may take years to play out the last rounds. It is already possible, however, to declare the Democrats’ lawfare a failure. Its principal objective was to deny Trump the presidency, and even if Trump loses, that won’t be its doing. Lawfare is thus analogous to the Democrats’ wayward 2016 strategy of encouraging Trump to run — calculating that, given a talented GOP field, he was the candidate Hillary Clinton could crush. This time around, it was lawfare’s job — its first objective — to help Trump get the Republican nomination. Democrats wanted that because they were convinced that Trump could not win (as was I, and I still don’t think it was crazy to believe that, before Biden’s incapacity became undeniable). Hence, the lawfare gambit’s effect of preventing more fit Republican candidates from gaining traction has resulted in a general-election pairing — Trump and Biden — that repulses the majority of the country.
By now, lawfare was supposed to have made Trump a certain loser, despite Biden’s immense negatives. It’s worth reviewing how and why it failed. That is especially so because, reportedly, the president is giving serious consideration to dropping out of the race — under intense pressure from anxious Democrats. He and they never expected to be in this position. Not because Biden’s deterioration had gone unnoticed, but because lawfare was the gambit that, by now, would have the public riveted to and disgusted by what Democrats surmised would be Trump’s proven, disqualifying criminality. Lawfare’s collapse left Trump relatively unscathed, even buoyed, and the public-attention void has been filled by scrutiny of Biden’s alarming physical and mental decline. That is likely to cost the president the election, if it doesn’t force his withdrawal from contention in the coming days.
So why did lawfare fail? There is good and bad in this story.
We Still Believe in Fundamental Fairness, Even for Unpopular Defendants
The good is that lawfare has failed because it was a gross violation of the due process of law. I’ve pointed out that this would be manifest if Trump were a terrorist rather than the archnemesis of the media–Democrat complex.
During 9/11-era debates over how the government should treat captured foreign jihadists, the Lawyer Left admonished that it was essential to America’s standing in the world that we bring our enemies into civilian courts, endow them with all the majesty of the Bill of Rights, and take whatever time due process demanded to give them trials of exemplary fairness. Indeed, many of those lawyers got permission, liberally granted by their white-shoe firms, to represent the terrorists gratis — insisting that they were not aiding the enemy but rather affirming America’s abiding commitment to the rule of law.
All this high-minded rhetoric was revealed to be so much tripe when Trump was in the dock. If the accused had been a terrorist or hardened criminal, Democrats and their legal- and media-elite allies would have wailed endlessly at the scandal of simultaneously indicting the same person in four complex cases, in courthouses a thousand miles from one another; at the expectation that such a defendant could navigate the complications, comb the discovery, litigate pretrial motions, prepare competent defenses, and endure four trials — all on or before a date chosen for political rather than law-enforcement reasons. And that, even as activist civil lawyers aligned with the prosecutors were concurrently suing the defendant for every penny he was worth — and expecting him to find time for those trials, too.
Yet, that is exactly the burden imposed on Trump.
Partisan Democrats were fine with all that. This has made them look small in the eyes of fair-minded people. Obviously, Trump partisans were outraged, but they weren’t alone. It is not a defense of Trump’s actions, many of which were appalling even if not legally sanctionable, to observe that the lawfare campaign was, and remains, deeply unfair. That hits people at a gut level. It undermines the legitimacy of the justice system. It signals that if abusive partisans in power could do this to a famous, powerful person in such a grotesque spectacle, they could do it to any one of us.
Lawfare has failed in part, then, because it violated our instinctive American sense of fairness. That’s good. But it might have succeeded nonetheless were it not for the undisguised overzealousness of the prosecutors — a degree of fervor that vanquished what good prosecutors always need, professional detachment.
The Main Offenders: Jack Smith and Merrick Garland
Prosecutors have a complicated job. They should never indict a case unless they are convinced that (a) the evidence is sufficient to convict, and (b) the public interest demands that the case be brought — i.e., the upside of prosecuting is not outweighed by other worthy public interests. If a case passes that test, it should not only be charged, the prosecutor should want to win because the public interest would be served. Nevertheless, no matter how worthy the case, the prosecutor is obliged to uphold the law, including the rights of the accused and the integrity of the judicial process.
At every step, the prosecutor has to weigh the defendant’s fair-trial rights — not because the prosecutor is a good person, but because that’s what the law dictates. A conviction will be reversed, at great public expense, if the defendant’s rights have been violated. The trial judge and appellate courts are fail-safes to guard against abuse, but the system works if the prosecutor follows the rules. Consequently, the prosecutor can never let righteous indignation over a defendant’s crimes and character — which are sometimes heinous — overcome the professional, constitutional obligation to vindicate the defendant’s rights.
In the lawfare crusade against Trump, prosecutors lost that detachment.
The main offender on this score was Jack Smith. That also makes Merrick Garland a principal culprit. Smith’s recruitment and appointment were utterly unnecessary. The Biden Justice Department did not have a conflict of interest in investigating and prosecuting Trump. There was thus no need for a special counsel. Indeed, DOJ, which has a bottomless well of excellent prosecutors, was investigating Trump for almost two years before Attorney General Garland drafted Smith to take over the case as special counsel.
There were two enormous problems with this. First, the appointment was driven by politics. In service to the president’s reelection campaign, Garland sought to create the illusion that Biden and his Justice Department had nothing to do with what Garland knew were the coming prosecutions of Biden’s election rival. The AG brought Smith in from outside the government (he was then a war-crimes prosecutor at The Hague) to promote the fiction that Trump’s fate was now in the hands of an independent actor. That’s constitutionally illiterate: Smith was merely a delegate exercising power that Article II vests solely in Biden, and he was reporting to Biden’s top law-enforcement officer, Garland. As is often the case when decisions are made for the wrong reason, Garland and Smith failed to appreciate that the unnecessary appointment would cause problems down the road. In this instance, it infected the eventual prosecutions with a constitutional infirmity: Neither Senate-confirmed nor statutorily retained, Smith was probably not qualified under the appointments clause (art. II, § 2) to wield the powers Garland vested in him.
Second, Smith may be a very smart guy, but he is temperamentally unsuited to oversee politically fraught cases. His overzealousness in the prosecution of Virginia’s former governor, Bob McDonnell, had resulted just a few years earlier in the Supreme Court’s overturning of McDonnell’s corruption convictions. The defect, Chief Justice John Roberts concluded in the unanimous decision, was that Smith stretched a vague statute to the point of implicating noncriminal actions that were staples of ordinary politics. Sound familiar? Instead of factoring in due process, the Court observed that Smith exacerbated the harm to McDonnell by convincing the trial judge to refrain from giving the jury limiting instructions.
I’ve known many government lawyers like Smith — effective prosecutors if assigned to the right kinds of cases, but also self-styled good-government, public-corruption crusaders. In their zeal to show that no one, especially no Republican politician, is above the law, such prosecutors are heedless of the danger that overzealous enforcement can stymie constitutionally protected activity that the Framers intended to be lightly regulated, not criminalized. Smith’s indictments of Trump demonstrate that he failed to take the Court’s McDonnell lesson to heart.
The Federal Indictments
The election-interference indictment in Washington is worse than Smith’s McDonnell case. It’s an effort to convict Trump for the Capitol riot despite the dearth of proof actionably tying him to the violence.
In the effort to accomplish this, Smith has stretched vague fraud and obstruction statutes to the breaking point, throwing in for good measure a civil-rights statute that was designed to criminalize the forcible intimidation of voters — not the discounting of ballots that were safely cast. In its recent Fischer decision, the Supreme Court gutted Smith’s theory that Trump obstructed Congress by exploiting the violence of the January 6 uprising (although Smith’s alternative theory of obstruction based on the so-called fake-electors scheme may survive). And as I’ve previously detailed, the Supreme Court in recent years has warned prosecutors against distorting fraud statutes as if they were meant to combat public corruption. (Concededly, the fraud statute Smith invoked was not at issue in those cases, but I believe the current Court would balk at it all the same.)
The Mar-a-Lago document-retention indictment may be Smith’s greatest blunder. It is the strongest case against Trump. The obstruction counts state serious crimes for which the average person would be charged — unlike many other lawfare allegations, they do not appear to be politically sculpted to single out the former president. Moreover, having allegedly occurred months after Trump was out of office, the obstruction charges raise no immunity concerns. If Smith had charged a narrow obstruction case when he indicted Trump in June 2023, he might have been able to push the case to trial within a few months — a trial that would have taken only two or three weeks, and at which there would have been a probability of conviction.
Instead, Smith could not help himself but lard the indictment with 32 felony Espionage Act charges — as if it was necessary to have three centuries’ worth of potential prison time for classified-documents offenses, on top of the more than half century the 78-year-old Trump statutorily faced on the obstruction counts.
Because of these Espionage Act counts, the contents of the documents — not merely the fact that Trump had them in his possession and failed to surrender them upon being subpoenaed — would now be relevant. Plus, to put the documents in context for purposes of his defense, Trump would undoubtedly seek other classified information, as defendants in this situation typically do. That necessarily meant the case — which would now take two to three months to try — would be mired in glacial pretrial litigation under the Classified Information Procedures Act. If this were Trump’s only indictment, the CIPA litigation (which often includes pretrial appeals) would have taken over a year. With several additional indictments on Trump’s docket (including the other one brought by Smith), the decision to include nearly three dozen Espionage Act charges guaranteed that the Mar-a-Lago case could not be tried before November 2024, Smith’s goal of a pre-election trial notwithstanding.
Smith’s other gargantuan error was failing, in his haste to nail Trump, to think through the immunity issue and its ramifications. Smith can’t seem to see Trump as anything other than a criminal defendant. Like it or not, he’s a former president, and Smith’s charges in both cases hinge on Trump’s actions during and in relation to his presidency. In part two of this series, we’ll look at how the immunity issue derailed the Washington case and how, in short order, the appointments-clause issue then scotched the Florida case.
That, we’ll see, led to the Democrats’ worst nightmare: In the public mind, lawfare came to be defined by the travesty that was Alvin Bragg’s prosecution of Donald Trump.