The State of the Federal Prosecutions of President Trump

This is the third of three related posts. (Here are post 1 and post 2.)

The Justice Department, acting as an adjunct of the White House political operation, portrays federal cases brought against Trump as if they were rejected by courts on the merits and, therefore, that Smith is a “disgraced” former prosecutor. This is sheer propaganda.

Few commentators were more critical of Smith’s investigation than I was. I did not think there was a legal basis under the special counsel regulations to appoint him; I think there is persuasive force to Judge Aileen Cannon’s conclusion that Smith’s appointment technically violated the Constitution’s appointment’s clause (though I argued that this could easily have been cured); I believe that Smith overcharged the Mar-a-Lago documents case, which, if brought at all, should have been indicted as a straightforward obstruction case; I thought his J6 charges were a stretch (under circumstances in which charges should not be brought in politically fraught cases unless the crimes are clear and supported by compelling evidence). Moreover, Smith ran roughshod over Trump’s due process rights by charging him in two complex cases, in venues a thousand miles away from each other, then pushing for impossible schedules to get them tried before Election Day; the Supreme Court obviously found that Smith (and the lower courts) had given inadequate consideration to presidential immunity; and to me, it is incontestable that Smith tried to influence the outcome of the 2024 election, which DOJ rules admonish prosecutors never to do.

This is not a good record. None of it, however, separately or in conjunction, comes close to suggesting that Smith brought baseless cases or that he is “disgraced” because those cases were dismissed.

Neither case was rejected by the courts. In fact, though dismissed on technical grounds, both cases were dismissed without prejudice, meaning that they could be revived once Trump is out of office. To repeat, if a Democrat wins the 2028 presidential election, I expect that Trump would pardon himself rather than risk a revival of the charges. (I once hoped that a revival of the Trump cases would be inconceivable, especially if he had a successful second term, given how electorally disastrous the 2023–24 lawfare campaign proved to be for Democrats. But given Trump’s unabashedly vindictive lawfare practices, I now have to assume that the next Democratic administration will pursue criminal investigations against him — and that Trump’s lawfare practices make Democratic victories in coming elections more likely.)

The J6 case involved misconduct over which Trump was properly impeached by the House. He evaded Senate conviction, despite guilty votes by seven Republicans, only because of the Constitution’s daunting requirement of a two-thirds’ supermajority vote.

The vote was 57–43 to convict, ten short of the 67 needed. It could have been much closer. First, there would likely have been more Republican votes in favor of conviction in early 2021 — when the Capitol riot was still fresh in the country’s mind — had it not been for a good-faith constitutional dispute over whether it was appropriate to conduct an impeachment trial for a president who was no longer in office and thus could not be removed. This argument gave cover to Republicans who feared Trump’s base: they could vote “not guilty” on technical grounds even though the evidence of impeachable conduct was damning. Second, the House Democrats’ politicized impeachment investigation, resulting in a legally flawed “incitement of insurrection” article, was rushed and incompetent. They did not take the time later taken by the (flawed and partisan) J6 Committee and Smith to develop a much stronger case. This gave Republicans a rationale to vote against impeachment, despite the evidence, because the case was legally dubious and Democrats were using it to smear Trump supporters. (Impeachment is a political process, not a legal one.)

Contrary to Trump-camp blather, the Supreme Court did not throw out the case against Trump. In Trump v. United States (July 1, 2024), by a 6–3 majority, the justices held that the lower courts had not weighed the charges against what the majority found was the broad scope of presidential immunity. (Justice Amy Coney Barrett’s concurrence, discussed in the previous post, signals some division in the majority regarding the breadth of presidential immunity.)

Significantly, the Supreme Court did not throw out the J6 case, nor did it find that Trump had not violated federal criminal laws. The justices did not conclude that Trump’s conduct was innocent. Rather, the majority reasoned that it is not the place of federal courts or prosecutors to probe a president’s motivations if his actions — even if they are despicable actions — are within the broad ambit of executive power. In our system, abuse of executive power is supposed to be addressed by Congress, not the judicial system.

The Court’s ruling required Smith to overhaul his case. For example, the one conclusive ruling the Court imposed on the lower courts was that Trump had immunity from prosecution for, and from the introduction of evidence regarding, his consultations with the Justice Department (urging it to exhort the states to investigate election fraud despite the dearth of evidence). The president’s directions to the DOJ are at the core of executive power. Again, the Supreme Court did not say that Trump had not abused his power; just that the question whether he did is not justiciable.

The J6 trial court did not have jurisdiction over the case for eight months — from December 2023, when Judge Tanya Chutkan (an Obama appointee) ruled that Trump lacked immunity, until the August 2024 mandate issued from the Supreme Court’s ruling that he had immunity. When jurisdiction over the case was returned to Judge Chutkan, it was too late to contemplate a trial prior to the 2024 election (there was still an immense amount of pretrial litigation, and potential appeals, to get through). When Trump won the 2024 election, the indictment had to be dismissed based on long-standing DOJ Office of Legal Counsel guidance that a sitting president may not be prosecuted.

This was not a dismissal of the case on the merits. Again, dismissal was without prejudice. Meantime, Smith issued an extensive final report that is damning regarding the president’s 2020-election-related conduct. That is one of the reasons the Trump DOJ is so determined to convince the public that Smith is a “deranged” and “disgraced” prosecutor.

The Mar-a-Lago documents case, similarly, was not dismissed on the merits. Rather, Judge Aileen Cannon (a Trump appointee) concluded that Smith’s special counsel appointment violated the Constitution’s appointments clause. Indeed, Judge Cannon asked the Justice Department to consider some easy fixes (such as transferring Smith to work under the supervision of the U.S. attorney for the Southern District of Florida) rather than put her in the position of dismissing the indictment. The Biden DOJ and Smith stubbornly refused, preferring to appeal.

This was the state of play when Trump won the 2024 election. The Trump DOJ then dropped the appeal. Smith issued a final report regarding the Mar-a-Lago case, but it has not been publicly released. Hence, the indictment could be revived. (There would be significant questions about whether the statute of limitations had lapsed or had been tolled by the various unusual developments.)

Note: Initially, Smith’s Mar-a-Lago report was suppressed because there were two co-defendants as to whom the case had not been dismissed. But upon taking office, the Trump DOJ dropped the appeal as to those defendants (related to Smith’s appointment). That removed the legal obstacle, but the regulation leaves the decision whether to disclose a special counsel report to the attorney general’s discretion. Naturally, Attorney General Pamela Bondi has declined to release findings, which are surely scathing in describing Trump’s conduct.

Lawfare is terrible for the country. It would be best for all concerned if both sides dropped it. Since that is not going to happen, and since President Trump, along with his minions and allies, are determined to promote a revisionist history of the 2020 election, it will continue to be necessary to strive for accuracy regarding that dismal episode.