The former president may or may not have a convincing legal defense. But he will have a strong political argument to make about our two-tiered justice system.
The former president may or may not have a convincing legal defense. But he will have a strong political argument to make about our two-tiered justice system.
A s we’ve been observing here for the last couple of weeks, it appears that an indictment of former president Donald Trump by the Biden Justice Department’s special counsel, Jack Smith, is imminent. The indictment would be based on Trump’s unlawful retention of national-defense intelligence at Mar-a-Lago, his resort club and estate in Palm Beach, and it would center on his obstruction of a federal grand jury’s probe of that retention.
Trump’s lawyers met on Monday with Smith at the Justice Department in Washington. That is a strong sign that a decision on whether to charge the former president is looming. Smith’s grand jury is known to be meeting this week, so it is possible an indictment could be approved, although it appears that prosecutors still have some testimony they want to present to the panel.
Two weeks ago, as it became apparent that Smith’s Mar-a-Lago probe was nearing its conclusion, and that he was likely to seek an indictment, Trump lawyers John Rowley and James Trusty requested (in writing) a meeting with Attorney General Merrick Garland. Their letter alleged that Trump was “being treated unfairly” and “investigated in . . . an outrageous and unlawful fashion,” in contrast with “President Biden, his son Hunter, and the Biden family.”
On Monday, Rowley, Trusty, and a third Trump lawyer, Lindsey Halligan, were given a two-hour meeting at Main Justice to flesh out their grievances and attempt to persuade prosecutors to relent. The meeting, however, was not attended by Garland or Deputy Attorney General Lisa Monaco.
This is consistent with the Biden administration’s strategy, which I’ve previously outlined. There was no good reason for Garland to appoint a special counsel to prosecute Trump. A special counsel is only warranted when there is a conflict of interest that prevents the Justice Department from conducting an investigation ethically. There is no conflict between the Biden Justice Department and Trump. That is why Garland did not appoint a special counsel for over a year, even though DOJ was aggressively investigating the former president. Moreover, even though there is a patent conflict of interest in the Biden Justice Department’s investigating President Biden and his family’s influence-peddling business, as well as President Biden’s son’s various crimes, Garland has steadfastly refused to appoint a special counsel for those matters.
Garland appointed Smith based on a partisan political calculation, not a legal one. Biden knows that, in the 2024 presidential campaign, Trump will argue that Biden has “weaponized” the Justice Department against him, in order to drive from the contest the Democrats’ most formidable challenger. To attempt to blunt this argument, Garland appointed Smith as soon as Trump declared his candidacy. This enables Biden and his Justice Department to feign noninvolvement in any prosecutorial decisions regarding Trump.
Constitutionally speaking, the administration’s position is nonsense — all federal prosecutors are subordinate executive officials who exercise the president’s power and may be removed by the president at will. Smith reports to Garland and is bound to follow Justice Department guidelines that are enforced by the attorney general. Nevertheless, expect the media–Democratic complex to echo Biden’s and Garland’s pretense that Smith is completely independent and is exercising his authority with no direction from Main Justice, much less from the White House.
Consistent with this story, Garland and Monaco did not attend yesterday’s meeting, despite the Trump lawyers’ request. To have done so would have undermined the political fiction that Smith is an independent prosecutor and that Biden has no say in whether Trump gets indicted.
Consequently, Trump’s lawyers were left to lodge their complaints about Smith with Smith himself. That seems to have gone about as well for them as one would expect. Although his defense team stayed mum after the meeting, Trump put out a statement on his Truth Social media platform, presumably after being briefed:
HOW CAN DOJ POSSIBLY CHARGE ME, WHO DID NOTHING WRONG, WHEN NO OTHER PRESIDENT’S [sic] WERE CHARGED, WHEN JOE BIDEN WON’T BE CHARGED FOR ANYTHING, INCLUDING THE FACT THAT HE HAS 1,850 BOXES, MUCH OF IT CLASSIFIED, AND SOME DATING BACK TO HIS SENATE DAY [sic] WHEN EVEN DEMOCRAT SENATORS ARE SHOCKED. ALSO, PRESIDENT CLINTON HAD DOCUMENTS AND WON IN COURT. CROOKED HILLARY DELETED 33,000 EMAILS, MANY CLASSIFIED, AND WASN’T EVEN CLOSE TO BEING CHARGED! ONLY TRUMP – THE GREATEST WITCH HUNT OF ALL TIME!
I will address Trump’s claims about Biden and the Clintons in a separate post. What’s relevant for now is that Trump is convinced, based on what his lawyers are apparently telling him about their meeting with the prosecutor, that he is about to be charged in the Mar-a-Lago documents case.
Although Smith’s remit also includes any potential crimes that could be charged against Trump arising out of the Capitol riot and his related effort to reverse the results of the 2020 presidential election, it does not appear that any such charges will be brought — at least for now, and probably not at all. As I’ve explained for some time, a January 6 case is unlikely because (a) there is a dearth of evidence tying Trump actionably to the violence, (b) to bring such a case, prosecutors would have to criminalize the strained Trump legal theory that then–vice president Pence had authority to discount state-certified electoral votes, and (c) very recent Supreme Court cases admonish prosecutors not to stretch federal fraud statutes to create crimes that Congress has not clearly codified.
Take note though: That does not mean Trump’s 2020 election antics are a closed chapter. As a special counsel, Smith will write a final report explaining his charging decisions, just as Robert Mueller and John Durham did at the end of their investigations. I expect that Smith will submit (to his superior, Garland) a comprehensive report about Trump’s actions in connection with the 2020 election and the Capitol riot. The report will be made public at some critical juncture during the 2024 campaign — bank on it.
Of the grievances that Trump’s lawyers registered with Smith at Monday’s meeting, one must assume that high on the list is the special counsel’s decision to subpoena Trump lawyer Evan Corcoran, not only for testimony but for extensive notes from his conversations with Trump.
Corcoran is the Trump lawyer who principally drafted the June 2022 sworn statement, signed by Christina Bobb (another Trump lawyer, who was acting as Trump’s records custodian), which represented that a diligent search had been conducted at Mar-a-Lago, and that the 38 documents they surrendered that day to the FBI for transmission to the grand jury were the only documents bearing classification markings that were present on the premises.
The statement proved to be false. Further investigation convinced prosecutors and the FBI that Trump was still hoarding classified intelligence. The government thus obtained a search warrant from a federal magistrate judge, who found probable cause of document-retention and obstruction crimes. On August 8, 2022, pursuant to that warrant, the FBI seized over a hundred more documents bearing classification markings — many of them in Trump’s private office.
After Smith subpoenaed Corcoran, Judge Beryl Howell of the federal district court in Washington, D.C., ruled that the lawyer must surrender his notes and testify before the grand jury. She reasoned that the Trump–Corcoran communications were not covered by the attorney–client privilege because Trump appeared to have used his lawyer to conceal evidence and otherwise obstruct the government’s investigation, therefore triggering the “crime–fraud exception” to the privilege. Trump’s lawyers appealed this controversial ruling, but were rebuffed by the D.C. Circuit appellate court. Because of grand-jury secrecy rules, neither Judge Howell’s ruling nor the Circuit’s decision is public. I do not know whether Trump’s lawyers sought review in the Supreme Court; typically, the Court would deny review at this stage — the prosecutor and the grand jury already have the disputed information; if Trump is indicted and convicted, the issue can be raised on appeal on a full record, as the Court prefers.
I have not been able to find any indication that Corcoran was given immunity. Since he did testify before the grand jury, and I’ve seen no indication that he asserted his Fifth Amendment rights (though we can’t know that for certain, since the testimony is not public), we must assume Smith’s theory is that Trump misled his lawyers, knowing that they, in turn, would provide false information to the government investigators and the grand jury.
Presumably, Smith is contemplating charges of obstruction and causing perjurious representations to be made to the grand jury. As I pointed out yesterday, Smith may also charge Trump with unlawful retention of national-defense information, the same charges that the Obama–Biden Justice Department opted not to bring against Hillary Clinton in 2016, and that the Biden Justice Department has opted not to bring against Trump’s vice president, Mike Pence, and — bet your bottom dollar — will decline to bring (or recommend) against President Biden. But the prosecution of Trump will be portrayed as principally an obstruction case, not a document-retention case.
In all likelihood, Trump is claiming that the investigation has been “outrageous and unlawful” because he believed his communications with Corcoran, his lawyer, were confidential (although the historically litigious Trump obviously knows about the well-established crime–fraud exception).
Even if Trump is in the wrong, I would expect, if he is indicted, that we’ll be hearing quite a bit about the Clinton-emails investigation. There, far from coercing the former secretary of state’s battalion of lawyers, the Obama–Biden Justice Department allowed them to dictate what evidence the FBI was permitted to review and what questions it was permitted to ask. Indeed, in that investigation — which involved unlawful retention of classified information and obstruction of a congressional investigation — the FBI and Justice Department prosecutors mostly avoided using grand-jury subpoenas, claiming that making agreements with Clinton’s lawyers, which inhibited investigators, was the more efficient way to proceed. This included giving Clinton’s lawyers immunity in exchange for surrendering their computers rather than demanding the production of those computers by subpoena or seizing them by search warrant.
And when Clinton was perfunctorily questioned at the end of the investigation (long after the Obama Justice Department and FBI had decided she would not be charged), she was permitted to have present and assisting two of her lawyers who were subjects of the investigation.
The Trump Mar-a-Lago indictment seems imminent. It’s not clear whether the former president has a convincing legal defense. But he will have a strong political argument to make about our two-tiered justice system. That argument is apt to resonate with many Republican voters. Whether it makes headway with the broader electorate remains to be seen.