Because there is no such rule, formally.
Because there is no such rule, formally.
P olitically speaking, I don’t blame former president Donald Trump and his supporters for framing as “Election Interference” the superseding indictment that Biden-Harris DOJ special counsel Jack Smith filed Tuesday in the 2020 election-interference case. After all, the lawfare campaign — the strategic timing of three Democratic prosecutors (two elected and one who works for the Biden-Harris administration) in filing four indictments meant to damage Trump in the 2024 campaign — makes a mockery of due process while unabashedly politicizing law enforcement.
With that as a given, any splashy lawfare development is “election interference” in that it furthers the partisan objective of using government police power to influence the election outcome. We all know that if the partisan roles were reversed, the media would be amplifying Democratic squawking rather than circling the wagons around Republican prosecutors. Plus, the theory of both Smith’s prosecution in Washington and District Attorney Alvin Bragg’s prosecution in Manhattan is that Trump corruptly influenced elections (2020 and 2016, respectively) for partisan purposes; it is fair political game, then, for Trump to limn Democrats as punishing him for having done exactly what they themselves are doing with impunity.
All that said, though, Smith’s superseding of the Trump indictment in the closing weeks of the campaign is neither surprising nor a violation of Justice Department policy. And in the scheme of things, as “election interference,” it is negligible.
The Trump camp’s complaints implicate DOJ’s so-called 60-day rule — at least in spirit (the new indictment was actually returned 69 days prior to Election Day). I refer to a “so-called” rule advisedly, for it is not written down anywhere. The closest DOJ has come to formal guidance is then–attorney general Michael Mukasey’s 2008 memo, reminding the feds that
law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.
That’s all we’re talking about: a commonsense admonition that, during the roughly two months before an election, lawyers sworn to uphold the law without fear or favor should try to avoid taking unnecessary, overt investigative steps that could influence an election’s outcome.
Readers may recall that I am not a fan of this imaginary rule — nor was I as a prosecutor (though I don’t recall ever “violating” it). As AG Mukasey observed, prosecutors should never be governed by the election calendar (there are actual written DOJ rules against that). Sure, taking an overt step might influence an election. It is at least equally true, though, that being in politics should not be an advantage for a law-breaker. If, in a normal case, a prosecutor would, say, arrest and charge a person based on strong evidence, then to refrain from doing so just because the person is a candidate for public office is also a form of “election interference.”
There is no real 60-day rule because there is no clear-cut rule that would make sense in all situations. What is an “overt” action? Grand-jury proceedings, for example, are secret, but if a prosecutor subpoenas a witness to testify in a political-corruption probe, nothing prohibits the witness from alerting the press that X candidate is under investigation (grand-jury-secrecy rules bind grand jurors, prosecutors, and court reporters, not witnesses and their lawyers). And the question of what is a “necessary” investigative step is very subjective. If I as the prosecutor know that a candidate/suspect is hoarding incriminating evidence in his office, and that he might destroy it if I don’t grab it first, should I refrain from seeking a search warrant because there’s an election in 45 days and the publicity is apt to hurt the candidate’s prospects? Again, my job is to enforce the law; I don’t want to influence the election, but the election, even if I can’t totally tune it out, is not my priority.
In any event, though it’s only monitory, the Justice Department purports (loosely and inconsistently) to follow a 60-day rule. And Trump supporters are right to point out that DOJ — under Trump, though in the teeth of his public rants — refrained from taking enforcement action against Hunter Biden in the run-up to the 2020 election. (At the time, Trump was publicly calling for Joe Biden’s indictment.) Given that DOJ stayed its hand, even though Hunter was not a candidate and the evidence he’d committed gun and tax crimes was substantial, shouldn’t Smith have remained passive with the election — in which Trump is the GOP presidential candidate — less than 70 days away?
Well, we already had Smith’s answer on that, long before Tuesday’s superseding indictment was announced.
As I related back in March, in connection with Smith’s prosecution of Trump in Florida in the Mar-a-Lago documents case, the prosecutor had already rationalized that the 60-day rule does not apply to Trump. The former president’s supporters cried foul, seeing this as yet another indication that Trump was being denied equal protection of the law because of partisan calculations. Smith countered that there was no point in applying admonitions against overt prosecutorial action against Trump because he had already been indicted. That is, because the public already knew about the allegations, no prosecutorial action in the run-up to the election would be a surprise that could influence voters.
As I pointed out at the time, this was disingenuous on Smith’s part (surprise!). The overt action he was hoping to take — and not just in Florida — was to bring Trump to trial prior to the election, even if that meant having a two-to-three-month trial run right up to and through Election Day. That would be unseemly. Clearly, a trial is not just any “overt” prosecutorial step; it is the public proceeding at which all the incriminating evidence is proved, with the press hyping every gory detail.
Plus, while there was no law-enforcement justification for trying Trump before November, doing so would prevent the Republican candidate from campaigning at the most critical time — impairing his right to run and the public’s interest in a robust campaign. But it was worse than that: If Smith’s position was that a trial wouldn’t offend the 60-day rule because the voting public already knew about the allegations extensively pled in the public indictment, then why was Smith hell-bent on getting Trump tried before Election Day? The only rational reason — a corrupt reason — was that Smith sought to enable the Democratic campaign to brand its opponent as a “convicted felon” during the campaign stretch-run. Again, that’s politics, not law enforcement.
In any event, given that Smith had already taken the position that even a trial of Trump would not unduly interfere with the election, why should we be surprised that he saw nothing untoward about the filing of a superseding indictment? After all, as I explained Tuesday, the superseder basically just repeats most of the allegations already made in the original indictment.
On this, Smith has a point — regardless of what his motives may be.
As Rich and I discussed on the last two podcast episodes, Smith had asked for a nearly four-week delay in the proceedings, even though Judge Tanya Chutkan had shown herself anxious to get the election-interference case up and running again. The Supreme Court had tasked Chutkan, with the input of the parties, to perform an exacting examination of the indictment for purposes of determining (a) which allegations implicated official acts for which Trump had at least presumptive (if not absolute) immunity; and (b) whether any presumptions of immunity could be overcome by a convincing demonstration that a prosecution would not harm the presidency. To get that ball rolling, Chutkan wanted to hold a pretrial conference with the parties’ lawyers on August 9.
For the Justice Department, however, there is much more at stake than just the Trump prosecution. Smith may not like the Trump immunity ruling, but it is a boon for DOJ prosecutors, whose principal job is to defend the actions of the executive branch — a job DOJ will perhaps get back to prioritizing once Trump lawfare has run its sorry course. Therefore, before Smith could take positions on why Trump should be denied immunity, DOJ had to be comfortable that Smith’s arguments would not create precedents that would impede DOJ’s defense of future presidential actions. Unavoidably, the Trump prosecution and DOJ’s institutional role are at cross-purposes (something AG Garland and Smith should have thought harder about before indicting the former president).
The upshot of this is that Smith asked for a delay until August 30 (i.e., yesterday) to make the prosecution’s first submission to the court regarding the way forward on immunity — which allegations prosecutors would fight to preserve, why Trump’s responsive immunity claims should be rejected, and what pretrial evidentiary hearings would be necessary to sort all that out.
What does that mean for present purposes? Well, even if Smith had not formally superseded the indictment on Tuesday, he would have de facto superseded the indictment by Friday. That is, Friday was his deadline to disclose to Chutkan and the defense what he envisioned the case would encompass in light of the Trump ruling.
Given these considerations, the cleanest thing for Smith to do was supersede the indictment. You may not agree with how he did it — as I contended in Tuesday’s column, I think the superseder is insufficiently attentive to the Supreme Court’s wide berth for presidential immunity. But remember, the Supreme Court did not throw out the Trump election-interference indictment — even if Trump’s rhetoric often suggests otherwise. The Court directed further proceedings in the trial court. One way or another, there were going to be new developments this week that would begin charting the future course of the case. Smith decided to take the bull by the horns and provide his vision of how things should go. That is what prosecutors do, and, like it or not, a superseding indictment was the most efficient way for him to do it.
You can argue, as I have (see, e.g., here and here), that the lawfare enterprise is pernicious in many ways. The Manhattan case is a travesty and the Georgia case is a clown show. I think Smith foolishly overcharged the Florida case, but as former presidents are not above the law, I have no problem with a prosecution of Trump for flouting a subpoena and obstructing a grand-jury investigation — to me, that’s more law enforcement than lawfare. And while I’m sympathetic to the point that Hillary Clinton got a pass on obstruction (just as she and Biden got a pass, from Democratic Justice Departments, on mishandling classified documents), the wrong in that equation was the failure to prosecute Clinton, not the prosecution of Trump. Anyway, the Florida case has been dismissed, at least for now.
I’ve never approved of the election-interference case, but I’m not unsympathetic to what drives it — if we’re talking about right and wrong, not partisanship. Trump’s conduct, from the stop-the-steal shenanigans to and through the Capitol riot, was egregious. But the Constitution contemplates that the check on presidential misconduct is Congress, not executive-branch prosecutors. Smith’s case, then, is a proxy for Congress’s failure to impeach, remove, and disqualify Trump, as it should have done.
The criminal-justice process is simply not a fit substitute for the political process of impeachment. Yes, Smith has made a number of errors and he is temperamentally wrong for this assignment. Yet the main problems he is crashing into are structural: the result of the Constitution’s separation of powers and the weighty difference between the government’s burden in impeachment (the stripping of political authority, which is a privilege not owed to the officeholder) and in criminal prosecution (the stripping of liberty and property, which are fundamental rights).
To bring a prosecution, Smith and the Biden-Harris DOJ have had to steamroll norms against exploiting law-enforcement power to hurt political rivals. They’ve had to stretch to the breaking point criminal statutes not meant to apply to the situation at hand. I sympathize with the conceit of well-meaning Americans — those willing to apply the same standards to both political sides — that Trump should be held accountable for what he did. It was terrible for the country. It is the reason (as I’ve been saying for three years) that more than half of Americans will never vote to return him to power, regardless of grave misgivings about his progressive Democratic opponents. That makes winning a one-on-one election extraordinarily difficult, to say the least. But no desire to hold Trump accountable for the post-2020 election debacle, however well-intentioned, can transform courtroom prosecution into a cure for congressional default. Trying to make it so can only distort the criminal-justice system — the forum where, unlike in impeachment, Trump must be presumed not only immune but innocent.
In any event, Smith’s superseding indictment was a necessary step because the Supreme Court’s ruling dictated that the election-interference case had to be narrowed. It is not “election interference” — at least, not any more than the Democrats’ lawfare crusade already was. And the superseder notwithstanding, that crusade has exhausted its potential as a determinant in the 2024 election. Whether lawfare has any life beyond November will depend on how the election turns out.