Jack Smith Report (Partially) Released

Senator Elizabeth Warren said back in 2019: 

First, a hostile foreign government attacked our 2016 election to help candidate Donald Trump get elected. Second, candidate Donald Trump welcomed that help. Third, when the federal government tried to investigate, now President Donald Trump did everything he could to delay, distract, and otherwise obstruct that investigation. 

That's a crime. If Donald Trump were anyone other than the President of the United States right now, he would be in handcuffs and indicted. Robert Mueller said as much in his report, and he said it again on Wednesday. 

That's why I came out in favor of impeachment after reading all 448 pages of Mueller's report. This is not about politics — it's our constitutional duty as members of Congress. It's a matter of principle.

Warren supported changing the current policy against indicting sitting presidents. She supported a special task force to investigate the Trump Administration when she ran for president. 

I cannot find the exact words but as I recall it would be separate from a normal investigation in the Justice Department. President Warren probably would have appointed a special counsel before Trump ran for re-election (2024). Biden did not do #2 and #3.

Attorney General Elliot Richardson promised Congress he would not fire the Watergate special counsel except for cause. Merrick Garland did not promise Congress to appoint a special counsel to investigate Trump. The Senate Democrats could have made that a grounds for their confirmation vote.

The release of Jack Smith's report related to the election interference case brings to mind these things. In hindsight, at least, a special counsel should have been appointed earlier. But, this is not just about Merrick Garland. The investigation of Nixon was not just about one person either. We need to know the full story to assign responsibility and know how to act in the future. Scapegoating is not advisable.  

One analysis takes a strong potshot -- "dithering coward" etc. -- at Merrick Garland for not changing the policy against prosecuting a sitting president. What good was that going to do in context? 

The policy allegedly is constitutionally required. I disagree but many liberal law types disagree with me. It is not just Merrick Garland. And, if the prosecution continued, Trump would have gone to the courts to try to block it. There was not enough time after the election to prosecute Trump before January 20, 2025.  

Jack Smith's report argued that if Trump did not win the election, that evidence was there to convict. Chief Justice Roberts and his conservative crew slowed things down via Trump v. U.S. The trial could have been over months before the election. 

The impeachment managers in Trump's first impeachment warned that if he was not convicted and removed he would "do it again." He did. As summarized by the Washington Post:

[Trump] pressed officials in key swing states to ignore the popular vote and flip electoral votes from Joe Biden to Trump; tried to submit fraudulent slates of electors from such states; threatened Justice Department leaders to open sham investigations and falsely claim election fraud to get states to join the plan; and pressured Vice President Mike Pence to use his ceremonial role overseeing Congress’s election certification on Jan. 6, 2021, to overturn the results.

The second impeachment involved a charge of insurrection. Others pointed to the 14A, sec. 3. disqualification provision. Jack Smith argued that as a criminal matter, the case was not clear enough to warrant that route. He used other criminal provisions. 

The interference of the electoral count cited in the criminal indictment very well involves the sort of thing that is "insurrection" for purposes of 14A, sec. 3. The provision is not a criminal provision for purposes of the "beyond a reasonable doubt" standard. 

But, even there, there were seditious conspiracy convictions in a few January 6th cases. There is a clear overlap between insurrection and sedition:

In order to win a seditious conspiracy case, prosecutors have to prove that two or more people conspired to “overthrow, put down or to destroy by force” the U.S. government or bring war against it, or that they plotted to use force to oppose the authority of the government or to block the execution of a law.

Garland did not release the second part of the special counsel's report respecting the classified documents case. First, let us recall the multiple delays there involved different issues than in the election interference case. Garland himself has even less blame in that case for the delay. Judge Aileen Cannon had a large role, for instance, in multiple delays. 

Second, the reason is that two prosecutions are pending involving Trump flunkies involved in the mishandling of the documents. There is a sort of formal reasonableness to that but (1) without Trump, the cases are fairly trivial (2) the Trump Justice Department is likely to drop them. 

(Yes, something to ask the presumptive Attorney General.)

The rest of the report will then likely be stuffed (again, ditto). Why not just drop the two cases and release the report now? I think it is correct to call out Attorney General Merrick Garland (who overall I think is a tragic figure who some people think was there to do one thing) here.

Trump is already a felon for election interference in New York related to the 2016 election. I heard on Fox News (someone else was watching it as I put together a table) an argument that the unconditional discharge shows how the prosecution was phony. 

A confusion of cause and effect. The judge only provided that sentence for the same reason why Jack Smith dropped the prosecutions -- the rules for a sitting you know what. The special counsel's reminder is no less true because of its bad taste:

The Department’s view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution, which the Office stands fully behind. Indeed, but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.

If you want an assured happy ending, watch a Hallmark Channel movie. But, gaslighting aside, guilt is not washed away with nearly fifty percent of the fraction of the voting population that deigned to vote. 

There are certain safeguards in place when handling dangerous items. Let us remember that when handling things after noon next Monday.