The volume of the United States Department of Justice (DoJ) report dealing with the prosecution of Donald Trump over the event of 6 January four years ago has just been published.
It will take time to digest – and please note this blog is not written by an American lawyer.
But there is one key question that has to be asked of the report and the failed prosecution it details and describes.
And it goes to the last portion of the report:
“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.”
This balanced CNN report from earlier this year provides informed views as to the delays, with defenders and critics of the DoJ process both quoted.
My preliminary view as a commentator on litigation matters is that the prosecution underestimated the effective lawyering of Trump’s advisers and also underestimated how the courts may go against them.
They had what seemed a one-sided litigation strategy – that is to say, not a meaningful litigation strategy at all.
If a party to a dispute has absolute control over events, it does not need a strategy.
A litigation strategy instead is needed so as to anticipate and deal with what the other parties can and will do, and what the courts can and will do.
Trump’s lawyers had a strategy of delay and obstruction – and it worked very effectively, at least with the federal prosecutions (though not entirely, of course, with the New York fraud prosecution, though they still ensured the sentencing there was too late so as to be meaningless).
Not for the first time, those who though they had the measure of Trump underestimated his sheer will for survival.
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Absent a change to the Constitution – almost unimaginable – Trump’s second term as President will be his last. Could the case against him, concerning his actions on 6 January 2021, be revived after he demits office?
I’d guess he’ll pardon himself and any potential Co-defendants.
The better view appears to be that a Presidential self-pardon would be unconstitutional..
Garland took 667 days to appoint a Special Prosecutor from 20th Jan 2021, when his hand was forced by Trump’s employees were discovered to have lied to the FBI.
The Muller Report has yet to be published with any redactions removed.
Trump was not prosecuted for the Zelensky phone call – also election interference amongst other matters.
The possible judicial outcome is unlikely to be different with the Supreme Court likely to have made the same ‘Immunity Ruling’, but the delays in taking action clearly caused confusion with many voters asking: “why is this happening now? [why not sooner?]”.
Read Sarah Kenzidor on this subject. Eye opening.
Trump benefited from eyebrow-raising decisions from well-placed allies.
McConnell should have ordered a vote for impeachment, but despite his previous condemnation and assertion that Trump was responsible for Jan 6, ultimately bent the knee. He also delayed an Obama pick for the Supreme Court and rushed through a Trump appointment so that the Court has a conservative majority that supports a conservative agenda.
The Constitution should have prevented Trump even standing for election, but there are always ways to twist interpretation if one has enough power and public support for the beneficiary is also significant.
The Supreme Court ordered that not only are presidents immune from prosecution for official acts, even when those acts are corrupt, but that any act that is in any way linked to an official act, is also immune. They declined to define either. The lawyer in that case argued that a president can kill his political opponent and face no penalty. The opinion was also criticised for legislating from the bench, making new law instead of interpreting current law in the narrow case before it.
Judge Cannon made some interesting decisions in the Mar-a-Lago documents case. Dismissal of that case on the grounds that a Special Counsel is unconstitutional was an argument contained within Justice Clarence Thomas’ opinion on immunity. His statement had no business in that opinion, so one may well wonder at its purpose. It also ignores the precedence set by every other ruling on Special Counsels affirming the office as constitutional since the 1800s. Cannon had twice been censured by her bosses on the Eleventh Circuit for interfering in a Trump case to his benefit before she was even appointed to the unrelated documents case. She refused to recuse herself despite her oath of office requiring recusal if there is even an appearance of partiality.
It is not that laws do not exist to prevent defendants escaping accountability, but that it requires those in office to apply those laws faithfully to all. The DOJ overestimated compliance with the oath of office and the law for multiple individuals in multiple roles. It helps to be well-connected to those in power, the law be damned.
“The lawyer in that case argued that a president can kill his political opponent and face no penalty.”
Yes, because Congress needs to impeach and convict first, and why wouldn’t it in that very stark case? I sincerely hope it would, but to be very frank, I’m not so sure. Congress is simply not functioning in its envisaged role as an effective check on the other two branches, and that is the root of every single ill that you would rather lay on the judiciary. Congress should have impeached and convicted Trump but did not.
As for litigating from the bench, I don’t agree. This has never been tested in the SCOTUS, and they were entitled to make that ruling. No past President has ever been indicted, so how could there be precedent?
Yes, they made new law, as does every Supreme Court authority that discards a previous standard. They did not make “a new law”, which is different. That’s legislating from the bench. Arguably, and convincingly so, Roe vs Wade did that. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.”, claimed Ruth Bader Ginsburg in a 1992 lecture, and she was proven right.
I do not want a President’s actions to be liable to prosecution by his rivals (excepting when he has first been convicted by the Senate). I want Congress to do its job.
There was widespread commentary that the Supreme Court strayed too far in the immunity decision into deciding the case for all presidents instead of restricting themselves to the question of Trump and whether he should be immune for his actions regarding Jan 6. As there is nothing in the Constitution that mentions immunity for presidents, they have set the precedence now where it did not before exist, hence bypassed Congress in making law. That was the argument put forward by many commentators, including those like Judge Luttig on the Right. I cannot say to what degree that is correct, just note that that is what was said. Vindictive prosecution is indeed a risk, yet had not been for the life of the USA to date, and was not the central question before the Court.
Regarding impeachment before prosecution, it was argued by Trump’s lawyers at his second impeachment that the Constitution provides for prosecution, so impeachment was unnecessary. A fine piece of cakeism that clearly needs proper debate and legislation.
The problem seems to be one of non-functioning checks and balances, whether from unwilling Congress or judicial overreach.
I recognize that the arguments at various times have been contradictory, but it doesn’t matter what was argued. It only matters what was decided. There is nothing in the Constitution saying one way or the other whether a President is immune to prosecution because it’s silent on that.
The most important job of the Supreme Court is to answer difficult constitutional questions that are put before it. I can scarcely imagine a more significant question than this one. Had the Court refused to tackle the issue generally, it would have been accused of cowardice.
The Supreme Court have not bypassed Congress. Congress could have made a law and the SCOTUS would then have been asked to rule on its constitutionality, during which time the law might have been disapplied. Congress could still make a law and seek to have it ratified as a Constitutional amendment, which the Court would be forced to accept. We must leave aside the fact that this seems to be practically impossible at the moment.
Only SCOTUS decides the meaning of the Constitution. The US Supreme Court, like the UK Supreme Court, develops the body of constitutional law through successive cases. This is uncontroversial.
The view that a sitting President cannot be prosecuted has been adopted by the DoJ as long standing policy since Nixon. The view that a past President cannot be prosecuted for official acts is not taking that much further, in my opinion. This outcome was a forseeable risk.
Dissent have argued that the office of President has been made into that of a King. The British monarch is immune to prosecution, and that’s in perpetuity. The President of the United States is also a head of state during his term. Once that service comes to an end, he is merely a citizen.
I still put Congress right in the center of all this, because that is the body that most directly answers to the electorate. The executive is expected to be political. The judiciary used to be more independent before Congress began abusing its confirmation role for party political gains. Congress is consumed by a cancer.
I do agree concerning the role of Congress.
However, you are arguing for a check on abuse of presidential immunity for criminal conduct, in the form of impeachment, that you are not confident will function as such. I feel that is an inherently weak position.
What of the ultimate constitutional principle of no one being above the law? Equal protection means equal application. Immunity for official acts is one thing, but immunity for intentionally criminal acts is quite another, especially in the context of partisan willful blindness.
It is true that privileges and immunities are granted all the time to various entities under the law, but these are (at least nominally) subject to checks and balances. These must be viable for the system to function fairly as opposed to corruptly. As it stands, there is no easy path to accountability for presidents inclined to commit crime. It’s now substantially easier to get away with anything. That ought not to be the case. If an official act is carried out corruptly/criminally, it ought to be prosecutable. This could have been addressed by the ruling, which upholds the opposite position. It is the case in many other nations. SCOTUS having the right to decide one way or the other is not the same as making a just ruling. Approval for the Court is at an all-time low.
All this is for people better placed than I to resolve. Ultimately, as I have no intention of ever returning, I think I can only hope the nation reaps what it has sown and learns from it. I fear that is the only way.
The trouble with the nation reaping what it has sown is that the world will suffer whilst it does it.
Remember Trump saying that his supporters “wouldn’t have to vote again”?
I was sure this will end in tears.
But I don’t think it will be that good.
Greetings, fellow disillusioned ex-pat. You make compelling arguments. The SCOTUS can and does sometimes make bad and overly broad rulings. Whether or not it has done so in this case, it had to answer the question. There was no escaping that.
Trump asserted a much wider immunity than the Court was prepared to accept. It found that a President (past or present) enjoys no immunity from prosecution for unofficial acts and only presumptive immunity for official acts. (Indeed, it held that contrary to my view, impeachment is not a necessary precursor to criminal prosecution.) In the exercise of core constitutional powers, there is absolute immunity. The Court does not define where those boundaries lie, but offers guidance.
In determining the present case, the Court ruled on some of the conduct described in the indictment as core and therefore immune. The rest, it left as a fact-based exercise remanded to the District Court.
It is possible that had Trump not been re-elected, the District Court may have found that some of this conduct was not immune. It is possible that this may still happen, though policy prevents the prosecution of a sitting President, and the case will at any rate be dropped. He could still be prosecuted after his second term finishes, as there has been no judgement on guilt.
A ruling in this case the other way would not have prevented Trump running and would not have prevented him winning, even if he were already behind bars. Only a conviction in the Senate could have done that. The ruling says nothing about conduct for which a President can be impeached and convicted, as that is the province of Congress.
https://sarahkendzior.substack.com/p/servants-of-the-mafia-state?utm_source=substack&utm_medium=email
Thanks for that!
Sad but true. I wish our PM and other European leaders would take a strong line on relations to Trump. He may be thought to represent a friendly country but this is unlikely to be sustained. The PM should make it abundantly clear that whilst he may respect the office of President but that he has no respect for the man. Morality counts in the long term.
I agree.
I think the US is leaving the community of nations run under the rule of law. Whether it’ll ever recover remains to be seen but serious constitutional amendments will have to be passed ending presidential immunity, supreme court lifetime appointments and the electoral college to name just 3.
I am included to blame Garland for this – he should have appointed Jack Smith on day one.
The USA under Trump is not a friendly country, and far less an ally. It’s all the more unfriendly that it plans to employ powerful openly hostile people and to support a country that threatens Europe, UK included.
Given DAG’s and indeed everyone else’s comments it is very hard to see that the outcomes could have been substantially different. On January 6, no doubt the case could and should have started earlier – but conventional wisdom seemed clear that it had to wait on the Congressional inquiry. Starting a year earlier, say, we would have had the Supreme Court immunity decision earlier, with all the attendant subsequent delays that promised: endless interlocutary appeals and no trial before the election.
Maybe Mar-a-Lago could and should have been different. Had it started earlier, perhaps the judge who seems to have successfully protected Trump would have made sufficient errors to be replaced by the higher court, and a normal trial process completed. But would even that have mattered? Politics trumps law.
Trump concurs with your last assertion. He recently said, in all seriousness, that the “verdict” of his voters in the recent election nullifies the verdict of the jury which convicted him of 34 felonies.
I find uncomfortable parallels between that and the intervention by our own parliament in the sub-postmasters case. If the Commons can usurp the powers of the judiciary and overturn a verdict of “guilty” (as distinct from passing a Private Act — not a Private Member’s Bill — restoring the condition of the sub-postmasters and their families to the status quo ante), how long before they claim the power to overturn one of “not guilty”?
Incidentally, recent news reports about the Trump felonies have implied that conviction technically occurs not when the jury delivers its verdict (as I have assumed for at least 70 years), but only once the judge has pronounced sentence. For all I know, that may be true in America, but it’s a new one on me.
I very much enjoy your blogs. You state:
“A litigation strategy instead is needed so as to anticipate and deal with what the other parties can and will do, and what the courts can and will do.”
Would you consider that US Attorney General Garland had planned for this outcome, which may explain the late appointment of the special council?