Like all veteran criminal defense attorneys, I have faced no-win cases. On the eve of a disaster, one leader offered early comfort: “The prosecutor's office will definitely do something to help.''
Over the next 40 years, that turned out to be true. Prosecutors were always fudging something or going on at length about vague details and overreaching sentences. Quite a number of “unwinnable'' cases ended in acquittals.
But no guilty defendant has received more support from prosecutors than President-elect Donald Trump.
First, Attorney General Merrick Garland waited nearly two years before appointing special prosecutor Jack Smith to begin an investigation. The delay allowed Trump, with the support of the Supreme Court and District Judge Eileen Cannon, to delay the criminal case until the trial date was past the election. Garland put Smith in an impossible position.
Now Smith is showing all the signs according to the model of garland. He invoked the Justice Department's policy against prosecuting sitting presidents and moved to dismiss both the Jan. 6 lawsuit and the docket. He folds up his tent and just retires.
Two comment pieces published in the New York Times after the election illustrate what's at stake. Thomas Goldstein (“End criminal case against Trump”) and Farah Stockman (“Did Trump's indictment damage Democratic Party credibility?”) Both argued that Trump's victory constituted a public verdict on the criminal case against him. Both argued that, in essence, voters constituted a super jury.
Who needs to go to court when there was an election?
This argument ignores the fundamental reality of how prosecutors prepare cases and manage pretrial public disclosure. The fact is that the Election Day “jury” of voters had access to only the tip of the iceberg of evidence regarding election interference and the Florida docket accumulated by Mr. Smith's belated but intensive investigation.
We do not have access to Smith's files. But we know from public records and news reports that he streamlined the case to bring it to trial quickly, interviewing and coercing the testimony of numerous cooperating and recalcitrant witnesses. We know that the information he releases is heavily redacted. Mr. Smith, like all prosecutors, has a large amount of records and documents that he has yet to disclose. (Fanny Willis, the district attorney who prosecuted Trump in Georgia, certainly hasn't streamlined her case, but she also has tons of unpublished evidence.)
Perhaps Smith withheld some of this evidence from the public in order to preserve as much tactical surprise as possible and protect the privacy of witnesses who might later prove unnecessary in a high-profile case. This may be due to the prosecutor's unique desire to protect. In any case, the rules of criminal procedure, grand jury secrecy laws, and prosecutorial ethics rules combine to prevent the premature contamination of the jury pool with factual material that has not yet been tested by adversarial scrutiny. There is.
But now that Mr. Smith has no federal case left to defend, his silence has become more than just discretion. As the Times commentary made clear, prosecutors' silence fuels claims that there was never a plausible case against Trump in the first place. The imitation of respect for the rule of law will have the effect of furthering the satire of the insurrection and the Justice Department's efforts to enforce the law on classified documents. That appears to confirm President Trump's claim that the Justice Department has been “weaponized.” That he is the victim.
Smith has the authority to prepare a report as follows: Robert Mueller did it.. It can be lifted with the approval of the Attorney General.
I expect any Smith report to be comprehensive, balanced and meticulous. Once Mr. Smith releases his report, many people will consider it carefully. If Smith (or Garland) remains silent, the public will be encouraged to view their arrogant silence as a confession of partisan prosecution.
For Smith and Garland, there is no way to simply freeze things to the status quo. of unedited file The people Garland and Smith left behind are Pam Bondi (who said “prosecutors will be prosecuted”) and Todd Blanche (Mr. Trump's personal lawyer who was tapped to be deputy attorney general). Either way, President Trump's new Justice Department will be available. ). Files can be used for: retaliation against witnesses and an aggressive and unchallenged disinformation campaign.
The facts gathered and evaluated by the special prosecutor's investigation at great expense are the people's property. The average person should have them.
James Doyle is a lawyer and author living in Boston.
