A Few End-of-Year Loose Ends -- Mostly Featuring You-Know-Who

As the year draws to a close, I wanted to add a few final thoughts to the holiday and new year's wishes provided by my co-bloggers last week.

(1) As readers may have seen, on Friday of last week, my Verdict column implored the Supreme Court to grant Jack Smith's petition for cert before judgment to reject Donald Trump's claimed immunity to prosecution and to summarily affirm the Colorado Supreme Court's ruling that Trump is ineligible for the Presidency under Section 3 of the Fourteenth Amendment. Barely were the electrons dry on my Verdict column (which went up at midnight as Thursday became Friday) when the Court half-mooted it by denying Smith's petition.

(2) Various commentators have rightly pointed out that the Court's rejection of Smith's petition does not necessarily reflect any view on the merits. It does, however, allow Trump's delaying strategy some greater chance of success. The Trump legal team's DC Circuit brief makes the same terrible arguments for immunity that they included in their opposition to Smith in the Supreme Court. Trump won't prevail on these arguments, but that's not the goal. There will now be a response from Smith, oral argument, and a ruling, followed by Trump's request for en banc review, which will probably be denied, and then a petition for Supreme Court review. Is it possible that all of that can occur without substantially delaying the start of the trial? I suppose, but a delay of at least a few weeks seems likely, at which point the trial would begin after Trump has won a number of primaries, with a verdict potentially coming after he has unofficially wrapped up the nomination. All of that plays into Trump's hands as he portrays his legal troubles as political persecution.

(3) We shouldn't let the Supreme Court off the hook for that, but the truth is that even if the Court had granted Smith's petition and immediately rejected Trump's immunity claims (as I urged it to do here on the blog eleven days ago), the timing of the trial before Judge Chutkan was going to be very awkward and susceptible to being portrayed as political in exactly the way I described above. Whose fault is that? Primarily Trump's, of course, for being the democracy-destroying malignant narcissist that he is, but that's not the question. We--by which I mean Democrats, Independents, and never-Trump Republicans--knew what Trump was and what he would do for years. The languid pace at which AG Merrick Garland pursued January 6 cases must count as a but-for cause of the overlap between the litigation calendar and the political calendar. Jack Smith has acted with energy and alacrity, but he should have been given his current responsibility in early 2021.

(4) I greatly admire Garland as a person of integrity. Various of my former students served as his law clerks and reported that he was a terrific boss in addition to being a fine judge. Under different circumstances, Garland likely would have been an outstanding Attorney General (or Supreme Court Justice -- grrrr). In our actual reality, alas, he may well be remembered as the man whose omissions doomed our democracy. Why didn't he act more swiftly against Trump? I have heard two theories.

    a) After Trump's attempted weaponization of the Justice Department, Garland saw it as vitally important to restore a sense of integrity and independence to the Department. Although officially stating that this meant no special treatment for Trump in either direction, Garland was surely aware that the greater risk to an image of restored integrity would come if his DOJ quickly brought charges (or appointed a special counsel to aggressively pursue charges) against Trump. As a consequence, he was overly timid in pursuing a case against Trump.

    b) By first prosecuting participants in the January 6 insurrection, Garland was following standard prosecutorial practice for rolling up a criminal enterprise: you begin with the small fish and work your way up to the big fish. In this view, Garland wasn't reluctant to bring a case against Trump; he was simply building the most effective one he could by acting methodically.

To the extent that either or both of these approaches explains the delay, they reflect naïveté about the politico-legal environment we inhabit. That's not to say that a more aggressive approach by Garland and the DOJ would have necessarily avoided the situation in which we now find ourselves. Perhaps if Trump were currently sitting in federal prison he would still be the clear frontrunner for the Republican nomination. But I'd venture to say that he would have less of a chance of returning to the White House in that parallel universe than he does in our own.

(5) On a different note, long-time readers might be wondering whether I'll be posting the constitutional law exam I administered to my first-year students earlier this month. The answer is yes--but I'm delaying doing so because one of my students had an illness and so hasn't taken the exam yet. I'll post the exam some time in the new year.

(6) Speaking of the new year, this is almost certainly the last new DoL essay until January 2 or so. For the rest of this week, we might run a few "classics" (i.e., reruns).

Happy new year and many thanks to all our readers for attending to our musings!