Was it all for nothing?
Late last week, special counsel Jack Smith took steps toward winding down the Jan. 6 prosecution of now-President-elect Donald Trump. Smith notified Judge Tanya Chutkan that by Dec. 2 he would provide an additional update given the “unprecedented circumstance” of his defendant being elected to the presidency. Justice Department policy prohibits prosecuting a sitting president, a policy that is binding for federal prosecutors. Although Smith could continue his work until the curtain drops on the Biden administration, it sounds like a different course is now under consideration.
Although Smith could continue his work until the curtain drops on the Biden administration, it sounds like a different course is now under consideration.
Meanwhile, Smith’s classified documents prosecution in the Southern District of Florida remains in legal limbo. The case is on appeal after it was dismissed by Judge Aileen Cannon, who ruled the special counsel’s appointment was unconstitutional. That’s an important legal issue, with legs beyond this particular prosecution, that the Justice Department will want resolved so it knows what the rules are for future special counsel cases. The case is in a different posture from the Jan. 6 case because there are two defendants in addition to Trump. Dismissing the case against him wouldn’t automatically kill the entire prosecution, although that’s the likely scenario once he regains control over the DOJ.
As of now, we don’t know how Smith intends to proceed in Florida. But his reply brief, the closing brief in the appeal now before the 11th Circuit, is due Friday. It’s possible DOJ intends to push forward to resolve the legal issue, if possible, but still intends to wrap the case up before the end of the administration.
Hopefully, no matter how Smith proceeds in Florida, he won’t permit the investigative work that allowed him to build his case to disappear. The facts of the Washington, D.C., case, and much of the government’s evidence, are publicly known. They were revealed in pleadings and extensively discussed in the media. There is a public record that preserves the evidence. But that’s not the situation in the classified documents case, where aside from the material in the search warrant affidavit, very little is known beyond the basic facts. We don’t know a lot about a case in which America’s next commander in chief is charged with mishandling classified information and obstructing the investigation into it. We don’t know what Trump’s motive was or what he did with any of the information.
If Smith closes the classified documents case on his watch, he’ll be the one writing the final report that goes to the attorney general and is likely to be publicly released. That doesn’t mean, by the way, that there would be full public disclosure of all of the evidence Smith and his team accumulated. There are restrictions, for instance, on the release of grand jury material.
This situation is very different from special counsel Robert Mueller’s dilemma during the first Trump administration. In that case, Mueller declined to make a charging decision because a sitting president can’t be indicted, so he would never get a day in court to establish his innocence if charges were recommended. As a result, Mueller simply laid out his evidence without making charging decisions.
That would be a departure from the normal practice when a court dismisses a prosecution, but this is not a normal case.
That’s not the dynamic in the Florida case. Trump and his co-defendants have already been charged, and the case, at least for now, is dismissed. If Smith writes a closing report, Justice Department officials will have to decide what is appropriate to include and be made public. They will have to determine whether, since the case was dismissed on a technical legal basis and did not proceed to a verdict based on the evidence, it’s appropriate to make the facts publicly known. That would be a departure from the normal practice when a court dismisses a prosecution, but this is not a normal case and there are important equities to be considered on both sides. The next commander in chief was charged by a grand jury with mishandling classified information and obstructing justice. There is value in having a public record documenting the evidence, regardless of what it reveals.
A criminal trial is arguably the best vehicle for uncovering that truth. Unlike the court of public opinion, a jury hears the relevant evidence. The law is thoroughly explained. The members of the jury deliberate and decide whether the government has proven specific charges beyond a reasonable doubt. That will not happen here, which benefits no one — neither the public, in whose name the case is prosecuted, nor the defendant, who will not have the opportunity to persuade a jury that he is not guilty. Given this imperfect situation, there should be, at minimum, a permanent public record of the evidence, in so far as releasing it complies with other legal restrictions. That’s a decision the Justice Department has the opportunity to make in the next two months, perhaps the most momentous one left to it in these cases.
