Smith’s Exit

I’m a little surprised at the flurry of reports that Biden-Harris Justice Department special counsel Jack Smith is planning to quit before President-elect Trump can fire him upon being sworn in. Surprised, that is, that this is considered news.

There were two ways this could have gone. The voters decided. Smith is just prudently reacting to that decision.

This was already clear last week. We discussed here and here how Smith had decided to close his cases, how he had asked Judge Tanya Chutkan (who is presiding over the J6 case in Washington, D.C.) to cancel all pending proceedings, and how Chutkan had directed him to submit to the court by December 2 his plan for the future of the prosecution. I expect that what he will submit is a motion to dismiss the case, under Rule 48(a) of the Federal Rules of Criminal Procedure.

I expect, moreover, that Judge Chutkan will sign off on this order. It will come from the Democratic administration that brought the case, not the administration of the Republican beneficiary of the dismissal. That is, there will be no specter of self-dealing that would give the judge pause; rather, the Justice Department is reasonably interpreting Office of Legal Counsel guidance that admonishes against prosecuting a sitting president. (I’ve opined that turning the national page from anti-Trump lawfare will also make it more publicly palatable for President Biden to pardon his son, Hunter.)

Why do I say, “The voters decided”? Readers may recall that in a series on the potential future of lawfare if Trump were elected president, we observed that among the most consequential but least discussed factors was the down-ballot result on Election Day.

Let’s say Trump had merely eked out a 2016-style victory — in which he got thumped in the popular vote but pulled a miraculous inside straight to win the battleground states and thus the Electoral College — and that Democrats had won majorities in both (or even either) the House and the Senate. Had that happened, I believe there’d have been mischief.

Democrats would be questioning the legitimacy of Trump’s victory and carping that the Electoral College was an anachronism ripe for elimination. Congressional Democrats would have declared that the majority of voters (especially coastal blue-state voters who would have been responsible for Democrats’ winning popular and congressional majorities) wanted no part of a Trump presidency. Smith’s J6 case would have taken centerstage, with Democrats using it to at least saber-rattle about refusing to certify Trump’s victory based on the insurrection disqualification in Section 3 of the 14th Amendment.

In such an atmosphere, there would have been support for Smith to carry on with his prosecution and force Trump to fire him, which Democrats would have portrayed as obstruction of justice. When Trump inevitably directed his Justice Department to dismiss the J6 case, House Democrats would have opened an impeachment investigation. The media-Democratic complex would have urged Judge Chutkan not to grant the Trump DOJ’s dismissal motion, prompting a constitutional dispute over whether she had the authority to refuse. Instead of being off to a flying start, the new Trump administration would be paralyzed, with the Democratic-controlled Senate refusing to confirm his preferred nominees and the Democratic-threaded bureaucracy slow-walking whatever Trump initiatives could be slow walked.

Now, look instead at what actually happened.

Trump won a resounding victory. While the votes are still being tallied, the president-elect likely captured a popular majority and certainly beat Vice President Kamala Harris by millions of votes (currently, it’s about 3 million). It’s the first time in 20 years that a Republican has done that. Just as important, Republicans triumphed down-ballot. They will hold a six-seat edge in the Senate — i.e., Trump will get his nominees confirmed, his administration will hit the ground running on Day One. The analytical site Decision Desk HQ has projected that Republicans will also retain a narrow House majority.

It’s not enough to say that, as a practical matter, these results would render futile any Democratic effort to prevent Trump from taking office or to start churning the impeachment machinery. Democrats — at least the wiser leaders among them — appear to be taking in the lesson that lawfare was worse than a flop. Americans don’t like it — even Americans who are not Trump enthusiasts.

At the ballot box, where the most valuable lessons are taught, voters punished Democrats for pursuing a strategy that makes every American vulnerable to politicized law-enforcement and regulation. They punished Democrats for running a subpar, unpopular candidate who tried to erase her record and take no policy stands. Most of all, they punished Democrats for the haughty conceit that they could win merely by chanting “Trump” and “convicted felon” as a campaign mantra.

Democrats are thus doing what a party ought to do: They’re adjusting. Lawfare didn’t work and it has already served whatever useful purpose it could serve. So, they’re abandoning it.

Ergo, there is no point in Jack Smith’s carrying on. There is no realistic prospect of advancing either of his cases (he already lost in Florida, though there is an appeal). If he tried to keep the two cases open, Trump would have them dismissed, and the Republican Congress would support him. Even if Judge Chutkan were inclined to try to stall the dismissal (which I doubt), the cases would be in limbo for four years. If they could be renewed after that, it would still be years before they could be tried (if they could be tried) — at the time of suspension, there remain complex legal questions of immunity, the viability of Smith’s special-counsel appointment, and the admissibility of classified evidence. Trump, meantime, would leave office as an 83-year-old, twice-elected American president who had stormed into office the second time, in part, because the public rejected the Democratic scheme to prosecute him into submission. It’s perilous to predict the future, but no sensible future administration and no sensible Justice Department would want to revive such cases.

That’s why Jack Smith is closing up shop. It’s not that he refuses to give President Trump the satisfaction of firing him. It’s that it’s time to go.