Even if Trump wins the presidency, we could be entering a stage of lawfare that makes the last two years seem placid.
Even if Trump wins the presidency, we could be entering a stage of lawfare that makes the last two years seem placid.
Author’s note: This is part three of a three-part series in which we try playing out what happens to lawfare — the criminal and civil cases against former president Donald Trump brought by the Biden-Harris Justice Department and state Democratic prosecutors, as well as other legal gambits by which Democrats may continue trying to forestall or derail a Trump presidency — in the event that Trump is elected president in November. Here are parts one and two.
I n the two previous installments of this series, we explored how congressional Democrats may try to block Donald Trump from taking office if he wins next week’s presidential election, how the pending state cases against Trump may shake out during a Trump presidency, and what is likely to become of Biden-Harris DOJ special counsel Jack Smith’s Mar-a-Lago documents prosecution of Trump in Florida. Today, we’ll look at the most complex and potentially explosive of the pending anti-Trump lawfare cases: Smith’s prosecution of Trump in Washington, D.C., on three felony counts of attempting to corruptly undo the 2020 election — the so-called J6 case.
In the J6 case, Trump faces not only a zealous prosecutor but a hostile judge, Obama-appointee Tanya Chutkan, who tried to help Smith get the case to trial in the heat of the presidential campaign (promptly ruling against Trump on immunity in late 2023) and, when that failed, used the Supreme Court’s immunity ruling as a pretext to enable Smith to publicly file a book-length presentation of his evidence against Trump — less than a month before Election Day, as early voting was already under way. (The Supreme Court had instructed Judge Chutkan to comb through the indictment and Smith’s evidence to determine (a) which allegations involved official acts of the presidency and (b) whether the presumption of immunity for such official acts can be overcome. The Court did not tell Chutkan this needed to be done pre-election or publicly — she did that on her own.)
I draw your attention to this hostility because it strongly suggests to me that — even though there is no prospect that the J6 case could be tried in the next several months — the prosecutor and judge would be active on this matter during the eleven weeks between the election and a Trump inauguration. Chutkan could, for example, conduct hearings on the immunity issue or even issue a ruling finding — as Smith contends — that Trump is not immune and that the prosecutor’s voluminous submission indicates that serious crimes were committed, warranting prosecution. Because immunity questions are subject to pre-trial appeal, such a decision by Chutkan would have no immediate legal effect; it could, however, damage the president-elect politically.
Let me tell you where I’m going here.
When Democrats lost the 2016 election to Trump, they immediately tried to set his presidency up for failure by beating the Russiagate drum and ratcheting up a criminal investigation, with congressional Democrats adumbrating eventual impeachment proceedings. A Russiagate prosecution and impeachment did not come to pass because special counsel Robert Mueller eventually cleared Trump (at which point Democrats pivoted to their Ukraine-related impeachment of Trump). But the Russia “collusion” demagoguery, built on bogus opposition research provided to the government by the Clinton campaign, did saddle Trump’s administration for two years with a criminal investigation — and all the stigma and grief that goes with it. That’s lawfare.
I expect that if Trump wins the election next week, Democrats will try to use the J6 case to do what Russiagate did for them eight years ago. If I am right about that, a couple of corollaries follow.
First, a Trump victory will not result in Jack Smith’s resignation; to the contrary, Smith will force Trump to fire him, potentially in a scenario reminiscent of the “Saturday Night Massacre” (more on that momentarily). In the interim, Smith will urge Chutkan to continue taking action in the J6 case (which is like pushing on an open door). That will keep the spotlight on the charges of 2020 election interference, helping congressional Democrats and their media allies argue that it would be an impeachable offense for Trump to dismiss the case or to pardon himself. (Obviously, this could become awkward if Democrats are simultaneously denying that Kamala Harris lost the 2024 election.)
Second, I believe Chutkan will follow the precedent of D.C. District Court judge, Emmet Sullivan, who lawlessly but effectively refused to approve the Trump Justice Department’s attempt to dismiss the indictment filed against former Trump national-security adviser Michael Flynn.
How is this likely to work?
Smith will use the time he has left prior to Inauguration Day, to press Chutkan for any necessary hearings on Trump’s immunity claim and for a ruling against Trump on the issue. This would highlight the evidence of Trump’s appalling conduct between Election Day 2020 and the Capitol riot. The objective would be to draw intense public attention to these matters as Trump takes office on January 20, 2025.
Among Trump’s first official acts upon returning to the Oval Office would be to fire Smith. He may have to do that directly rather than going through the chain of command, as is customary.
Though Trump may try to get the Senate to confirm some of his appointees during the transition, Democrats will still be in control of the Senate until at least January 3. They will not cooperate with Trump. If they permitted confirmation hearings for Trump’s attorney general and other DOJ appointees (a big if — I doubt they will do so), they would surely try to demand commitments that these appointees will not attempt to dismiss either of the Trump cases. No Trump nominee would make such a commitment.
Hence, Trump has to hope that the polls anticipating Republican control of the Senate come January 3 are accurate and that he can rapidly get his DOJ nominees confirmed once that takes effect. (Remember, the filibuster does not apply to confirmations.)
While Republicans would have about two weeks to try to get some Trump nominees through confirmation hearing prior to inauguration, Senate rules give the minority procedural tools to slow things down. The likelihood is that, when Trump takes office, he will not have any appointees in place at DOJ. Instead, he will have Biden-Harris holdovers, as well as career prosecutors — many of whom will have been hired and placed into key posts by the Biden-Harris DOJ. (While political appointees can be fired at any time, career prosecutors have civil-service protections, and the Biden-Harris administration has bolstered those protections government-wide precisely to undermine a potential Trump administration.) I assume that Merrick Garland will resign if Trump wins the election, but some Biden-Harris appointees will not. We should expect that one or more of them will play the role that Obama-Biden acting AG Sally Yates did in 2017 — i.e., they will look for opportunities to commit acts of anti-Trump insubordination that will be lauded by congressional Democrats, the media, and the left-leaning legal profession.
The first opportunity for this could be the firing of Smith.
Back in July, I had occasion to recount the Saturday Night Massacre of Watergate lore. In October 1973, President Nixon wanted special prosecutor Archibald Cox fired. AG Elliot Richardson had promised the Senate he would not terminate Cox, so he resigned rather than carry out the president’s order. Nixon then pink-slipped deputy AG William Ruckelshaus, who declined to carry out the president’s order even though his commitment to the Senate regarding Cox was not as clear as Richardson’s. Finally, at the urging of Richardson and Ruckelshaus, who were concerned about the prospect of mass DOJ resignations, Solicitor General Robert Bork agreed to carry out Nixon’s order. (Bork kept DOJ running, recruited Leon Jaworski to replace Cox, the Watergate probe continued, and the rest is history.)
Democrats will hope that a similar scandal embroils Trump in connection with Jack Smith. I do not believe, however, that a president is required to operate through the DOJ chain of command in order to terminate an officer. Instead, I suspect that, upon taking office, Trump himself will fire any remaining Biden-Harris political appointees, including Garland’s appointed special counsel, and leave the DOJ in the hands of career prosecutors (in acting-officer capacities) until he can get his own appointees confirmed.
Again, Trump really needs Republicans to win the Senate. Even more, he really needs a Bill Barr–type attorney general who is smart, confident, knows exactly how DOJ works, and will not be intimidated by experienced, hostile, grandstanding subordinates. This is going to be rough sledding.
Once Trump has someone who he knows will carry out his directives, he will want the J6 case dismissed. Constitutionally, this should not be a problem: The executive branch has unilateral discretion to determine which cases it will pursue and which it will not. Congress and the courts, however, have a default resistance to unilateral executive power (at least when it is wielded by a Republican administration). The result is that, as written, the rule covering dismissal of cases — Rule 48 of the Federal Rules of Criminal Procedure — purports to require DOJ to seek judicial permission before dropping an indicted criminal case.
To be constitutionally valid, this “leave of court” mandate must be construed as merely ministerial. A judge has no power to compel the executive branch to prosecute someone, nor has a judge any authority to appoint someone outside the government to conduct a prosecution. Again, prosecution is a quintessentially executive authority, and a court has no power to confer authority that it neither possesses nor controls.
Nevertheless, remember the saga of Judge Emmet Sullivan’s refusal to grant leave for the Trump Justice Department to dismiss the indictment against Flynn — interpreting the “leave of court” provision to give him power to keep the prosecution alive despite DOJ’s opposition. (It was never clear what Judge Sullivan would do if he scheduled a criminal trial and the Justice Department didn’t show up.)
It’s entirely possible that Judge Chutkan will follow Sullivan’s example. In his determination to undermine Trump’s DOJ, Sullivan had an advantage that Chutkan will not: Time was running out on Trump’s term. Sullivan was able to string things out so long that there was insufficient time for DOJ to get a conclusive ruling from the D.C. Circuit that Sullivan should relent, much less to seek Supreme Court intervention. (The D.C. Circuit is dominated by Democratic-appointed judges, and it declined to issue a writ of mandamus directing Sullivan to dismiss the case, reasoning that doing so would be premature because the judge had not actually done anything illegal yet. Of course, the point was that Sullivan was not taking action at all — he was stalling. If Sullivan had conclusively ruled that he would not give DOJ leave to dismiss the case, I believe the D.C. Circuit would have decided against him. But Sullivan was playing games; the Circuit knew it and indulged it.)
It will be much harder for Chutkan to decline to grant leave to dismiss the case and hold it in suspended animation for four years. She could try. Remember, Sullivan strung things out for many months by improperly inviting amicus briefs and ultimately appointing former judge John Gleeson (a Clinton appointee and former prosecutor) to “assist the court” by arguing against the Trump DOJ’s interpretation of Rule 48. There are plenty of similar Democratic lawyers who would be delighted to perform this function for Chutkan. If she’s clever about it, she could drag things out for a long time — and it would be a measure of revenge for Chutkan after Trump’s delay, delay, delay strategy succeeded in making it impossible to get the J6 case to trial prior to the 2024 election.
Why is this important? Because Trump does not want to pardon himself.
The Constitution’s pardon power (Article II, Section 2, Clause 2) nowhere suggests that a president may not pardon himself. Indeed, it explicitly says the pardon power does not extend to impeachment, which implies that the Framers considered that a president might grant himself a pardon and opted not to prohibit reprieves from criminal prosecution. Nonetheless, no president has ever exercised the power in his own behalf, and some scholars argue that it would be unconstitutional — on the theory that a person oughtn’t be the judge in his own case. I don’t buy that; I think the check on a potentially abusive self-pardon is Congress’s impeachment power. But my views are irrelevant; Trump would need to be concerned that, if he pardons himself, (a) the courts could rule against him and (b) he could be impeached.
If Chutkan refuses to grant leave to dismiss the J6 case and Trump can’t get a court to order her to do so (which could happen even though it shouldn’t), he would surely pardon himself. He would rationalize that, by electing him, the public implicitly rejected lawfare and called for an end to the exploitation of DOJ prosecutorial powers as a political weapon. Furthermore, he’d contend that the Constitution vested the decision whether to dismiss an indictment in the chief executive and that Chutkan was interfering in that decision illegally and against the public’s will.
So, why does this have to be like a showdown at the O.K. Corral? After all, if Chutkan stalls the case for four years, that means no enforcement action will be taken against Trump, the sitting president, so what difference would it really make?
Well, if the J6 case is not dismissed, it will remain dormant and could be revived if, say, Democrats win back the White House in 2028. By contrast, if there is a dismissal or pardon, the case would not lie dormant; it would be dead as a doornail. That means anyone who wanted to pursue it would have to start from scratch. That wouldn’t be practicable in 2029 because the five-year statute of limitations would have lapsed on J6 crimes allegedly committed in 2020–21. Consequently, if Chutkan can delay the dismissal litigation as successfully as Sullivan did, Trump would have no choice but to pardon himself if he wants to assure that the J6 case is not brought back to life five years from now (when Trump would be 83 years old).
This is one reason why Trump will want Republican control of the House nearly as much as he’ll need Republican control of the Senate. When Trump moves to dismiss the J6 case, and certainly if he pardons himself, House Democrats will argue that this is a self-dealing abuse of power that rises to the level of an impeachable offense. Past being prologue, if Democrats have the votes to impeach Trump, they will do so. The voters might not appreciate it, but the Democrats’ base will insist on it.
There will probably be a Republican Senate majority through at least 2026; even if there’s not, there will be enough Senate Republicans that Trump will not be convicted and removed if a Democrat-controlled House impeaches him. (Conviction and removal, of course, require a two-thirds’ supermajority vote.) But let’s remember, Trump would reenter the Oval Office as a lame duck; if he wants to accomplish lasting reforms as a one-term president, that needs to be done by legislation. Ergo, the last thing he can abide is impeachment. Such proceedings consume the congressional calendar and put the president under a cloud of suspicion as he tries to conduct foreign policy, protect national security, and perform other core presidential functions.
Finally, to return for a moment to yesterday’s discussion of the Florida case, this is why I believe there is a chance, albeit a small one, that Garland could abandon DOJ’s appeal of Judge Aileen Cannon’s order and try to revive the case in the district court, under the supervision of the Biden-appointed, Senate-confirmed, U.S. attorney for the Southern District of Florida. It would be harder for the Trump DOJ to dismiss the indictment in the district court than to drop the appeal in the Eleventh Circuit. In Florida, I believe Judge Cannon would grant a Rule 48 dismissal motion, as any judge should. But if the Biden-Harris DOJ succeeded in reindicting the case and getting it in front of a different judge — one more in the mold of Judge Sullivan — the Trump Justice Department would face the same problems in Florida as it is sure to have in Washington.
I was really hoping that the end of the Biden-Harris administration would be the end of lawfare. But look in our crystal ball: Democratic invocation of the 14th amendment’s Section 3, a fiery January 6 joint session at which Democrats could try to block ratification of a Trump victory in other ways, Trump’s sentencing still looming in Manhattan, the possibility — a distant one — that the Fulton County case could rev up again, the minefields that would attend a Trump DOJ effort to dismiss the J6 case, the possibility of a historic and controversial presidential self-pardon if the J6 dismissal is delayed, and the specter of impeachment hovering from the first moments of a new Trump presidency.
Alas, we may be entering a stage of lawfare that makes the last two years seem placid.