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We have now seen Volume 1 of Jack
Smith’s report, released just after midnight when Judge Aileen Cannon’s order
prohibiting DOJ from making it public lapsed. We already knew a lot of the
information in Volume 1, which covered the January 6/election fraud case
Smith charged Donald Trump with in Washington, D.C. We know less about the
classified documents case, which is memorialized in Volume 2 of the Special
Counsel’s report, including what Trump’s motivation for keeping classified
materials in the first place and then lying to prosecutors about it was. The only thing that seems clear about
the case is that it will never go to trial. Once Donald Trump is back in the
White House, his Justice Department can dismiss it, or Trump can pardon the
defendants. As sensitive as Trump is about releasing the report, there is no
way he will permit a full trial, with witnesses testifying to what they know,
in this matter. Given the case’s inevitable fate, why
won’t Merrick Garland just dismiss it now, so he can release Volume 2? Maybe
he still will. There is little reason not to. Although there is grand jury
and possibly classified information in the report that would need to be
redacted, it would serve the truth-telling function of the criminal justice
system. There will be no punishment for
defendant Trump in the federal cases. He will not be deterred, not will
others, by two failed prosecutions. He will not be incapacitated so he can do
no further harm. So all that is left is releasing the report so the public
can get some semblance of the facts, not conjecture, but evidence. It would
be uniquely ironic if the Special Counsel’s report on this case, alone, out
of all of the special counsel matters—Mueller, Durham, Hur, Weiss, and so
on—remained unreleased. The issue pending before the Eleventh
Circuit, whether Judge Aileen Cannon was correct when she concluded that the
Special Counsel statute Jack Smith was appointed under is unconstitutional,
is an important one. Because Cannon is the lone Judge to rule that it is not,
the Solicitor General would undoubtedly like to pursue the appeal in hopes
that decision can be reversed. But as a practical matter, the time for
that has come and gone. Instinctively, no prosecutor wants to dismiss the
appeal in what should be a viable prosecution. But the moment calls for more
than traditional institutionalism. We are past due for an infusion of a new
kind of institutionalism—a forward leaning variety that speaks to the moment
and takes the challenge Donald Trump brings to the rule of law head on. In his cover letter to the Attorney
General, sent over with the report, Jack Smith quoted Attorney General Edward
H. Levi, who, he noted, “assumed the Department's helm in the wake of
Watergate, summed up those traditions best: ‘[O]ne paramount concern must
always guide our way. This is the keeping of the faith in the
essential decency and even-handedness in the law, a faith which is the
strength of the law, and which must be continually renewed or else it is
lost. In a society that too easily accepts the notion that everything can be
manipulated, it is important to make clear that the administration of federal
justice seeks to be impartial and fair ....’” It is hard to preserve public
confidence in the rule of law after the last eight years. But Smith seemed to
be appealing to an idea we’ve touched on frequently—not letting Donald Trump
drag everyone else down to his level. In that regard, even if they didn’t get
to take their cases to trial, Smith believes his team succeeded. Many people
have lost confidence in the sine qua non of our democracy,
that no man is above the law. Smith wrote, “That is also why, in my
decision-making, I heeded the imperative that ‘[n]o man in this country is so
high that he is above the law.’” In Smith’s view, as he related his team’s
work, this principle was of primary importance as they pursued the case, more
than Trump’s ultimate fate. It’s a very different take. Trump may have made a
mockery of the system, but in Smith’s view, prosecutors treated him like
everyone else and that counts for something. It was the Supreme Court and
ultimately the voting public that failed, not the prosecution. I suspect many of you will be skeptics,
and that we will be rereading this transmittal letter and discussing it for
some time. My co-host on the Insider Podcast, Preet Bharara, pointed out this
morning that the letter reads like an opening statement at a
congressional hearing, with Smith already defending the integrity of his team
and their work. But it is worth contemplating the
spirit of a team of prosecutors who, in the face of a powerful man who
publicly taunted them and even threatened to prosecute some of them,
continued to do their jobs and remained committed to the idea that we can
still be a viable rule of law country if enough of us remain insistent on
that path. That’s what it comes to down to at this
point. Courage and vision and refusing to give up in the face of a would-be
authoritarian. Trump, of course, had a take on Truth Social: “Deranged Jack Smith was unable to successfully prosecute the Political Opponent of his ‘boss,’ Crooked Joe Biden, so he ends up writing yet another ‘Report’ based on information that the Unselect Committee of Political Hacks and Thugs ILLEGALLY DESTROYED AND DELETED, because it showed how totally innocent I was, and how completely guilty Nancy Pelosi, and others, were. Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide. THE VOTERS HAVE SPOKEN!!!” Trump’s view seems to be that he and
his lawyers were playing a game, and the only goal was to outflank
prosecutors. How very Roy Cohn of him. Not about justice. Not about the
American people. Yes, criminal defendants are entitled to vigorous
representation from their lawyers. But Trump is a former president who took
an oath to uphold the Constitution and serve the American people. Here, as he reembarks on the
presidency, the best he can muster is to deride Jack Smith for being “unable
to successfully prosecute the Political Opponent of his ‘boss,” engaging in
schoolboy level taunting. But it’s worse than just a taunt, because Trump is
confirming that in his view, presidents can direct prosecutors to go after
their political opponents and prosecutions who don’t pull it off are objects
of derision. Not justice, just politics, and dirty politics at that. Jack Smith didn’t get his cases to
trial. Our democracy would be better off if he could have. A jury should have
decided these cases. Ultimately, the Supreme Court and Judge Cannon will have
much to answer for when we see what path a president who conflates politics
and the rule of law puts the country on. It’s a stark warning about what is
coming. It has become popular for people to
say, as they did in 2016, “it won’t be as bad as everyone said.” I’ve heard
so many variations on this. People who are counting on Trump’s ineptitude or
Americans’ lack of willingness to go along with extreme measures like mass
deportations. Then there was Pete Hegseth’s
confirmation hearing to be Secretary of Defense today. If Jack Smith’s
report is the past, it is the future. Yesterday evening, NBC reported that Hegseth’s FBI background check did
not include interviews with his ex-wives or with the woman who accused him of
sexual assault—which he denies—in a hotel room in 2017. Shades of the
investigation that was (or wasn’t) conducted during Justice Kavanaugh’s
confirmation hearing. That’s some big stuff to leave out. Makes you wonder
what else is missing and how the Senate can advise and consent if it isn’t
first willing to learn the facts. “I just want to emphasize there’s
already ample and abundant information on the public record that shows Peter
Hegseth lacks the character and confidence to be secretary of defense,”
Connecticut Democratic Senator Richard Blumenthal said, according to the
report. “There has never been a nominee for this position as unqualified as
he is by virtue of financial mismanagement, as well as sexual impropriety and
alcohol.” In today’s hearing, Democratic
Senators were on target, revealing the nominee’s lack of experience and
character. It’s unlikely to impact Hegseth’s eventual confirmation, but it
will make for some interesting finger pointing about who knew what when he
implodes. Senator Warren pushed him to explain
his sudden change of heart about the role of women in combat after he was
nominated. Senator Angus King questioned Hegseth about views that suggest he
doesn’t believe in the Geneva Convention and got an entirely unsatisfactory
response. Senators Tim Kaine and Elissa Slotkin were polite but persistent,
and their questions about Hegseth’s personal life and professional
qualifications and his lackluster answers likely would have been enough to
end any other candidacy. Hegseth claimed every allegation he was
drunk or abused women was anonymous and not true. When it was Republicans’
turn, Senator’s like Oklahoma’s Markwayne Mullin excused— “he’s saved”—and
even embraced—I’m not in prison because “my wife loved me too”—Hegseth’s
alleged misconduct. Saturday Night Live really
couldn’t have done it any better, with Mullin asking Hegseth to tell the
Senate what he loved about his wife, who was sitting behind him. Hegseth came
up with, “She's the smartest, most capable, loving, humble, honest person
I've ever met. And in addition to being incredibly beautiful.” He had to be
prodded to compliment her for being “an amazing mother … of our blended
family of seven kids.” A suitable metaphor for what America
under Trump 2.0 is going to look like. We’re in this together, Joyce Vance |
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