“Without Prejudice:” Jack Smith Moves to Dismiss the DC Case
Jack Smith has moved to dismiss the DC case against Donald Trump. OLC has found that the categorical prohibition on the federal indictment of a sitting President means DOJ cannot sustain the indictment against Trump.
OLC concluded that its 2000 Opinion’s “categorical” prohibition on the federal indictment of a sitting President—even if the case were held in abeyance—applies to this situation, where a federal indictment was returned before the defendant takes office. 2000 OLC Opinion at 254.1 Accordingly, the Department’s position is that the Constitution requires that this case be dismissed before the defendant is inaugurated. And although the Constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting President, it does not require dismissal with prejudice. Cf. id. at 255 (“immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment”). This outcome is not based on the merits or strength of the case against the defendant
But OLC does not require dismissing the indictment with prejudice.
That means if Congress were to decide to impeach Trump on these issues, he could again be charged (through January 6, 2026).
Though it’s not yet clear whether Smith will dismiss the appeal against Walt Nauta and Carlos De Oliveira in Florida, this clears the way for Smith to file a report on what he found.
Update: In the 11th Circuit, Smith has moved to dismiss the appeal without prejudice against Trump but not his two co-defendants.
Update: Judge Chutkan grants Jack Smith’s request. How is notable: she focuses on defending the decision to dismiss without prejudice.
Federal Rule of Criminal Procedure 48(a) provides that before trial, the Government “may, with leave of court, dismiss an indictment.” The “‘principal object of the “leave of court” requirement’ has been understood to be a narrow one—‘to protect a defendant against prosecutorial harassment . . . when the [g]overnment moves to dismiss an indictment over the defendant’s objection.’” United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016) (quoting Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977)).1 Here, Defendant consents to the dismissal, Motion at 1, and there is no indication that the dismissal is “part of a scheme of ‘prosecutorial harassment’” or otherwise improper, Fokker Servs. B.V., 818 F.3d at 742 (quoting Rinaldi, 434 U.S. at 29 n.15). Rather, the Government explains that it seeks dismissal pursuant to Department of Justice policy and precedent. Motion at 2–6. The court will therefore grant the Government leave to dismiss this case.
Dismissal without prejudice is appropriate here. When a prosecutor moves to dismiss an indictment without prejudice, “there is a strong presumption in favor” of that course. United States v. Florian, 765 F. Supp. 2d 32, 34 (D.D.C. 2011). A court may override the presumption only when dismissal without prejudice “would result in harassment of the defendant or would otherwise be contrary to the manifest public interest.” Id. at 35 (quoting United States v. Poindexter, 719 F. Supp. 6, 10 (D.D.C. 1989)). As already noted, there is no indication of prosecutorial harassment or other impropriety underlying the Motion, and therefore no basis for overriding the presumption—and Defendant does not ask the court to do so. See Motion at 1. Dismissal without prejudice is also consistent with the Government’s understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office. Id. at 6 (citing Memorandum from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 225 (Oct. 16, 2000)).
Some courts in this district have advanced a broader view of the “leave of court” requirement. For instance, one concluded that “a judge may deny an unopposed Rule 48(a) motion if, after an examination of the record, (1) she is not ‘satisfied that the reasons advanced for the proposed dismissal are substantial’; or (2) she finds that the prosecutor has otherwise ‘abused his discretion.’” United States v. Flynn, 507 F. Supp. 3d 116, 130 (D.D.C. 2020) (quoting United States v. Ammidown, 497 F.2d 615, 620–22 (D.C. Cir. 1973)). Even under that broader interpretation, however, the court finds no reason to deny leave here.
Historians, make special note of this date, the day the presidency was replaced by a lawless oligarchy.
I thought that day was jan 20, 2001. After Scalia and O’Conner overturned the the vote in Florida.
With hanging chads
swingin’ in the wind
The arc of history
balanced on a limb
Awaiting a puff
of original sin
That 911
was the message within
I understand but do not agree with the requirement that the indictment be dismissed. The logic seems to be that it would distract from the President’s primary duties, were he required to defend himself in court during his term of office. My view would be that that depends on the alleged crime, especially if the alleged crime(s) related to illegalities committed to obtain or maintain office.
But so long as DoJ has moved to dismiss the case, it shouldn’t matter whether it is in fact dismissed before Trump’s inauguration. The executive branch has no control over how or how long it takes the judiciary to make decisions. That requirement seems designed to protect the DoJ more than the President.
If Donnie hadn’t spent so much time delaying it, it could have been settled before New Years. Has OLC even noticed that fact?
That’s false. SCOTUS determined this, 100%.
Cmon, EOH, you’re smarter than that.
You dismiss now, you write a report. You don’t dismiss now, you don’t get a report.
So that report would contain the Declination Decision you posted about on 11/18?
Yes. I would EXPECT that the report would include some surprises.
I’m feeling tremors of “Fitzmas!” in my limbic system.
Planning to avoid staircases.
What I missed is that he can’t issue his report until after the dismissal is effective. Presumably, then, that’s also why Smith chose not to adopt Juan Merchan’s approach and suspend proceedings indefinitely, as argued by Robert Reich. Reich misses that, while Trump should not be able to affect Merchan’s state court case, he can do what he wants regarding a federal prosecution.
https://robertreich.substack.com/p/the-special-counsel-jack-smith-just
I think, among other things, suspending the case would limit how much information you can share.
Yes, he must not have anything to distract him from watching Fox and playing golf.
How Trump can be protected from these charges without the limitation period also being tolled is beyond my understanding.
Statutes of limitation – specific legislation – are not designed to deal with criminality at such high levels in govt. A background assumption seems to be that the political process would prevent that. Not in the Age of Trump, apparently. He has managed to corrupt all three branches of govt and found an entire party willing to help him do it.
The Corruption Club. John Roberts is President.
EOH, that’s backwards. Trump is the inevitable result of a GOP that is corrupt, lawless, organized and funded by billionaires and dictators. The well planned, well funded takeover of all three branches allowed someone like Trump to happen.
Given that Donald Trump operates the RNC and GOP as wholly-owned subsidiaries of the Trump Org, and follow his orders whether he is in govt or out, we’ll have to disagree about which is the cause and which the effect.
I agree, DrSC. The rot had set in well before Trump came on the scene. Essentially because the GOP has long feared that its core policies are not resonant with the majority of a well-informed electorate. Hence its now-longstanding “scorched earth” strategy of congressional frustration of Democrat administrations, and its increasing resort to oligarch-funded public misinformation. Recall astroturf Tea Party.
Trump is the fungus that could only grow and flourish on GOP rotting compost. They had two chances to get themselves totally free of him and funked both, because they had become addicted to his genius for grifting, without which they all feared they would lose.
Of course, recalling Weimar Germany (as we increasingly must), the funders of AH thought he was a convenient rabble-rousing clown and their pliable shill, but fairly soon discovered that the (jack)boot was on the other foot.
Even if he were impeached again for this stuff there would still not be 67 senators willing to convict and remove him from office.
These cases were DOA once Trump won. The new DOJ would have to make a decision to continue the cases which was never going to happen. And Trump can just pardon everyone, maybe even himself, anyway.
The TV talking heads are debating whether the Trump DOJ will continue the Special Counsel appeal triggered by Canon’s ruling. Fighting it means taking a stand against one of Trump’s favorite judges. Letting it remain means he can no longer appoint his own Special Counsels for his Retribution Tour.
Virtually everyone is missing the Hunter Biden issue, I guess assuming Biden will pardon him.
If he’s still out there with an appeal, DOJ will have a difficult time defending BOTH his prosecution and opposing Nauta’s.
Joe’s pledge not to interfere in Hunter’s case might work in normal times. But he and his advisers should be mindful that Trump’s restraint is nonexistent, as is his willingness to abide by legal norms and standards, and that his need for unbounded revenge is bottomless.
He would want a framework that helps others, too. His team have about seven weeks to work on one.
If Biden doesn’t pardon his son he is both cruel and a fool. I don’t think he is either. Counting on the special counsel assignments to be invalidated is naive. The Trump DOJ will insist that the special counsel was improper in the Mar-a-Lago case but perfectly valid regarding Hunter Biden.
Won’t the appeal just go away when Trump pardons Nauta?
Trump will pardon Hunter and Nauta to make himself appear as a “uniter” and pretend to want to stop lawfare. He’ll use a Hunter pardon as a way to feign being judicious in his lawfare against his enemies and pardoning Hunter gives him plausible deniability that he’s weaponizing the DOJ.
Biden needs to just pardon Hunter. If he doesn’t, it’s lose/lose no matter what Trump does.
I think a lot of people, including you, believe ignoring the entire Hunter case is the best way to make decisions about Hunter’s best path forward.
Pardon the legally and personally vulnerable son of his sworn enemy, Joe Biden? Improbable. His disdain for weakness is profound. He wants to ratchet up lawfare, not tamp it down. His drive to exact revenge usually overcomes all other motivation.
I don’t see that there’s much value in such debate, since (if my understanding is correct; I’m not a lawyer) her decision is limited to that district rather than having national reach.
And as usual, his lawyers will squawk out of all sides of all their orifices in support of the decision that benefits him.
I’ve been a reader of Emptywheel for years and have never commented, but today’s decision by the Office of the Special Counsel moves me to do so.
As I see it, trump was re-elected for two reasons. First, he received a plurality of votes from people who were grossly ignorant and uninformed, or know exactly what he represents and are okay with that. Second is the failure of our legal system to respond to this kind of threat to our Democracy, culminating in today’s dismissal of the cases against him.
With no legal training, I don’t claim to know what it would take to fix our legal system, but now I wonder if we will ever get a chance to do so.
[Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We have adopted this minimum standard to support community security. Because your username is far too short it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]
Will the evidentiary filing in the DC case now be completely unredacted? Or will the report bring all that out anyway? Any chance Garland will monkeywrench the report?
I would be shocked if Garland monkey wrenched. I suspect he’s rather happy to get it out.
What is in the report is based on 1) whether DOJ can unseal GJ information 2) classification. Since Trump has no co-defendants in DC, there’s no concern for their due process (there is in FL, but you need to sustain that to even get to do a report on FL).
The biggest question is time. I’m sure Jack Smith wants to get this out in December. So he can’t dawdle a lot in writing a 1000 page report — which I’m sure he could fill.
Since dismissal without prejudice doesn’t toll the statute of limitations, when will the indictments lapse due to that? Thanks much for your great coverage of this.
Marcy’s post indicated it was January 6, 2026. That corresponds with the Jan. 6, 2021 riot and the standard five-year SOL for most federal crimes.
Never mind, Dr. Wheeler, since overt acts extend the sol and my memory is that overt acts charged ranged into later years, particularly in the classified docs case, let me re-read the indictments and try to guesstimate it. With your intricate knowledge of these cases, thought you might have an idea already. But I guess, since I see no reason a new AG couldn’t move to convert the dismissals to w/prejudice, the real goal is to publish a report with evidence, and ever prosecuting these may be impossible.
CoLeitrim
November 25, 2024 at 6:24 pm
Re SOL periods
The superseding indictment is here
https://www.documentcloud.org/documents/25148617-superseding-indictment_827
1 count 1 conspiracy to defraud
specifies the charge relates to activities between 13 November 2020 and 20 January 2021
2 count 2 conspiracy to obstruct
specifies the charge relates to activities between 13 November 2020 and 7 January 2021
3 obstruction and attempted obstruction
specifies the charge relates to activities between 13 November 2020 and 7 January 2021
4 count 4 conspiracy against rights
specifies the charge relates to activities between 13 November 2020 and 20 January 2021
Evidence re any acts by Trump post dating the dates in the charges is admissible on the question of intent and not as evidence of overt acts in furtherance of the conspiracy on conspiracy counts. As to substantive offence, any evidence of acts subsequent to the date is evidence of intent not of acts in furtherance of the offence, because the offence was completed on or before 7 January 2021. And any such evidence post dating the dates specified in the counts is not itself referred to within any part of the indictment but merely within motions etc filed separately.
As for extending the period of the SOL
18 U.S. Code § 3289 – Indictments and information dismissed before period of limitations
doesn’t apply, because various conditions within it are not met.
CoLeitrim
November 25, 2024 at 6:24 pm
Further for completeness
“But I guess, since I see no reason a new AG couldn’t move to convert the dismissals to w/prejudice”
1 Since Chutkan has •dismissed• without prejudice, is the court even seized of jurisdiction to deal with the case?
2 In any event, an application to dismiss whether with or without prejudice requires leave of the court, and my guess is that if Chutkan determined she had jurisdiction to hear a further dismissal application, she would not give leave to dismiss with prejudice without very very good reasons to alter her previous ruling.
What’s to prevent Smith, Harris, Schiff and the rest from declaring a run for the Presidency?
Try a making powder/vinegar enema. That should take care of it.
Note: you will need to have 911 on standby.
“Baking powder,” that is.
I think you really mean “baking soda” which is sodium bicarbonate, a base; when combined with an acid like vinegar (acetic acid), the reaction releases carbon dioxide.
“Baking powder” is a combination of baking soda and cream of tartar, the latter of which is tartaric acid.
Remember those little plastic rockets you used to shoot in grade school? They were powered by baking soda and vinegar, which generated enough compressed CO2 to shoot them up 30′.
For the same reason you never want to ingest an undissolved Alka-Seltzer, let’s not suggest ingesting it in any form in any orifice.
If you remember “Fizzies”, you didn’t want to eat those, either. Same reason, but with added flavor (root beer, usually, but lemon-lime was also one of their flavors).
Earl, is that the same as putting a Mento in a Coke?
Along the same line, though the Mento and Diet Coke experiment shoots up a geyser. Also, a reminder of how acidic cola is, and how hard on your teeth.
But the plastic Coke bottle isn’t built like your throat, stomach and intestines. Coke bottles are also free flowing, whereas you have muscles and valves designed to keep what’s inside you inside you. At least one person died from swallowing a solid Alka-Seltzer, which is why you may notice the current version is less bubbly.
Thanks for the chemistry lesson, even in the service of correcting a tasteless joke. At least I advised having emergency services at the ready.
I “stepped away from the bong” after that one. It was the user name that triggered it, btw.
Will this impose an obligation to preserve files, e.g. evidence files, on the next DOJ? If so, on whom and how strong? Is there an entity within the DOJ which holds the SC’s duties and obligations during the interim period? Is it merely professional ethics or is there an obligation the the court(s) which dismissed without prejudice?
“That means if Congress were to decide to impeach Trump on these issues, he could again be charged (through January 6, 2026).”
Dismissal without prejudice is a legal term of art. It has nothing to do with impeachment. It means that the charges have not been determined on their merits and may be refiled. Because Trump can’t be personally sued or prosecuted while in office, the statute of limitations for filing an action against him is likely tolled during that period.
[Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Retired Lawyer.” Your username should be unique with a minimum of 8 letters. We have adopted this minimum standard to support community security. Thanks. /~Rayne]
“…the statute of limitations for filing an action against him is likely tolled during that period.”
You’re a lawyer, you should be able to do better than tell us “likely.” Where in the Constitution or U.S. Code does it say the SOL is tolled.
I think you’ll find that without a statutory basis, tolling a SOL doesn’t happen. If the basis for a claimed tolling is not abundantly clear, you can also expect Trump to litigate it for years.
I expect that after Trump’s term is up, he will be in rather poor health. Age and lifestyle impose their own SOL.
And that point is reinforced by the fact that
18 U.S. Code § 3288 – Indictments and information dismissed after period of limitations
18 U.S. Code § 3289 – Indictments and information dismissed before period of limitations
Each provide for limited extension periods to the SOL
The respective provisions commence by specifying
“Whenever an indictment or information charging a felony is dismissed for any reason
[ after(3288)/before (3289]
the period prescribed by the applicable statute of limitations has expired,…”
However in neither provision are any of the subsequent conditions met in the circumstances of this case.
Thus tolling or extension in the circumstances of this case is provided for.
Facepalm ; *NOT provided for
!!!
Those two statutory provisions provide a six-month window for federal prosecutors to issue a new indictment, if and only if an indictment is dismissed after the SOL has run for the crimes charged, or would do so within six months of the dismissal. Generally, the six-month period starts when the SOL would otherwise expire.
Neither provision seems to apply to the Jan 6th case or the FL documents case.
EoH
My point was that those provisions do not apply. ( though I’d inadvertently left out Not in the last sentence, corrected in subsequent comment)
They are however the only provisions which exist to deal with dismissal of indictment.
There is no general tolling provision, just specific provisions for particular circumstances.
Before revision in 1988 the provisions cited were narrower still and dealt with dismissal due to defects in the indictment. The revision dealt with dismissal for any reason. But even that broadening would not cover the circumstances of this case. So that is the point.
There are many commentators in the media hung up on “without prejudice” imagining that refiling the indictment at the end of Trump’s term is a possibility, but of course they are wrong
Thank you, you wildly missed my point.
How does evidence get preserved in light of what’s going to be a hostile Justice Department?
Put it in a report and publish it?
What about the supporting documentation behind the report?
Well, if there are no co-defendants and privilege has been cleared (which didn’t happen with Mueller but which, bc of shit Garland did for which he got no credit, did happen here), then you can ask the judge to release it. There’s a non-zero chance when Chutkan said, Oh yes, dismiss w/o prejudice, she knew stuff we don’t and even Trump may not.
After what Barr did to the Mueller report, there are a lot of people “who won’t believe it until they see it” re the Smith report. It’s painful to remember how Barr acted. Gosh, I’d love to feel the hopefulness I felt back then. Before it got stomped on.
Fair!! But they should also hold Merrick Garland to Merrick Garland’s past practice, which was to release reports immediately, w/o redaction.
From your keyboard to Garland’s ears …
Can anyone expand on what potential liabilities Smith may have to navigate around if/when he issues a report, the content of which may expose him to DOJ prosecution under an AG whose calling card reads: “I prosecute prosecutors”
Prosecutors have broad immunity. Trump’s repeated rhetoric aside, there’s no obvious basis on which to prosecute or sue him. But that won’t stop Trump from trying. He doesn’t use the court system to win in the traditional sense, he abuses it to punish.
An irony here is that the DoJ should pay for Smith’s defense, it Trump legally attacks him for something he did as its Special Prosecutor. Same with his staff.
From the NBC News report: https://www.nbcnews.com/politics/justice-department/jack-smith-files-drop-jan-6-charges-donald-trump-rcna181667
Trump v. US has the desired effect. Roberts and his MAGA crew say that immunity in in the Constitution. The rule of law, the principle that no one is above the law? That’s just an aspiration.
Love your website but…..
You don’t have to say anything, you don’t even have to read here if you don’t like the content. We don’t even harvest your personal info or demand a fee, you’re losing nothing by leaving.
As if the situation *waves at the flames* is something under this site’s control. *eye roll*
That OLC ‘memorandum’ is treated like Moses himself wrote it in the Constitution.
Yeah, and also not in the Constitution…
also my frequent thought… like it’s just a legal memo, it’s not a law and not in the constitution, it’s crazy how much legal power and deference it is given.
Adam Schiff follows Bob Reich in arguing that Jack Smith should have suspended rather than dismissed Trump’s federal cases without prejudice. As Marcy points out, that would have prevented Smith from issuing his report, which could be a blockbuster.
Schiff also ignores that, if the cases were suspended, Trump could order the DoJ to change its mind, and dismiss his cases with prejudice, or w/o prejudice and hope the SOL run. Either way, Schiff and Reich’s approach would deprive us of Smith’s report, which may be the best outcome we can get, after a corrupt Supreme Court immunized his way out of prison.
Schiff argues that if Trump does that, “it’s on Trump” and not a voluntary act by the DoJ. The implication is that Trump and the Republican Party can still feel and respond to shame. Guffaw. Makes me wonder which version of Earth Adam Schiff is on. Also makes me wonder if he will be doing anything between now and 2028 but run for president.
Schiff for president? I thought Newsom had dibs. I was not happy when Harris pulled this in 2020 though I was very happy for her to run in 2024. I am not sure what other Dems will go for it – Whitmer should definitely step up again. Dems have a lot of highly qualified people but they suck at delivering the goods. They need someone who stands up to the bullies and punches back.
[Thanks for updating your username to meet the 8-letter minimum. Please be sure to use the same username and email address each time you comment so that community members get to know you. /~Rayne]
Nancy Pelosi, who ought to join James Carville in retirement, seems to still fashion herself as kingmaker. Adam Schiff seems to be her preferred white, male, milquetoast candidate.
She worked hard to help him defeat Katie Porter in the Senate primary, and to set up a dummy Republican retired former ballplayer as his opponent in the general. Donors might love Schiff, but it’s hard to see why any rank and file would.
Ms. Pelosi doesn’t seem to have much influence over Gavin Newsom, which would put him on her shit list, despite his being the more typical, straight-from-central-casting nominee.
Pin this comment against the day Schiff announces he’s running for POTUS. Assuming we ever have elections again.
Disagree – not with the worry about future elections, but with the notion Schiff has presidential ambitions. With this election, he has achieved his ambition and will be a Senator for Life.
My views about the ambitions of Nancy Pelosi and Adam Schiff are quite different.
Schiff is the same guy who outright lied about whether Congress gets ahead of criminal investigations at times.
Hmmm…according to CNN and others, the Trump team (and Trump himself) appear to be telegraphing the imminent under-bus-throwing of CC#6.
Apparently, he had a pay to play scheme with Gaetz going on .. Greitens too.
I assume that this is the real reason Trump acquiesced on Gaetz, and that there’s either some juicy CC#6 details in the report or Epshtyn’s about to be indicted.
Thanks for the heads-up. Forbes writes: “President-elect Donald Trump’s lawyers have investigated one of his top advisers, Boris Epshteyn, over claims he sought payments from aspiring staffers in exchange for promoting them to Trump, according to multiple reports—allegations denied by Epshteyn, a longtime aide who has clashed with other members of the president-elect’s orbit.”
Sounds like something Epshteyn would do! I take delight in watching the occasional grifter fall from grace. It’s not the same as Trump facing justice, but it’s something. :)
Well, I guess CJ Roberts can have all due credit. I look forward to the report.
What stakeholders outside the DOJ and executive branch can challenge the OLC policy that sitting presidents cannot be indicted and, force it to be changed? pretty easy to demonstrate by past performance that Trump has plenty of discretionary time so hard to believe a trial would “distract” to the point that he cannot fulfill the presidential obligations.
[Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We have adopted this minimum standard to support community security. Because your username is far too short it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. /~Rayne]
None.
OLC interpretations of federal law are binding on executive branch personnel. They are not law, though, which means federal judges are not bound to agree with them. But the odds of a private actor getting before a federal judge to contest them are nil.
so only a law that explicitly repealed it/over-ruled it would be enough, then?
trump and the fascists are in power now and all the unwritten rules of democracy are over. the idea of an impartial DOJ is gone forever. if the special councel does issue a final report we will all read but it wont matter one iota.
[Moderator’s note: FOURTH AND FINAL REQUEST: Please use the same username each time you comment so that community members get to know you. “dufusmembrane” is your FIFTH user name; you have previously posted as “ken m abbott,” “ken abbott” as well as “dufus.”
Your original username is “ken abbott” — use it on all future comments or you will be banned for sockpuppeting. /~Rayne]
Irrespective of the politics involved, this is just such an UNJUST moment in American history. A man incites and invites a riot of tens of thousands of people in Washington DC, has a rally and inflames the crowd further with bogus claims and five people die and the instigator walks free? How is this possible in America? And then when this lawless man leaves office, he takes hundreds of classified documents, any one of which would have sent a normal citizen to prison for pilfering. THIS IS A MONUMENTAL INJUSTICE IN AMERICAN HISTORY!
Not to mention, “was re-elected President by a plurality of voters.”
Excellent discussion between Marcy and Harry Litman re what to look out for in Jack Smith Report on Jan 6 investigation and Documents investigation:
Talking Feds Podcast with Harry Litman
Why We Must Have A Detailed Report of the Trump Prosecutions
“Harry talks again w/ Marcy Wheeler, as tenacious a follower of the Trump cases as there is, about what Jack Smith might include in a report to Merrick Garland pursuant to the Special Counsel regulations that would supplement the historical record. The short answer is “plenty.” Marcy and Harry march through intriguing but incomplete details in the public record about uncharged conduct, declined federal crimes, and especially activity of still important members of the Trump circle such as Steve Bannon, Roger Stone, and Todd Blanche. This is a detailed guide to what we don’t know but need to in the interests of both democratic transparency and history.”
https://youtu.be/v2nlnxStEhg
https://podcasts.apple.com/gb/podcast/talking-feds/id1456045551
With Trancript
Thanks for that link, Steve. The blurb gets it a bit wrong though: “follower of the Trump cases” should be “dissector”.
I am sure HL will welcome the correction he is quite the effusive fan (and rightly so, of course)
Can/should Biden pardon Smith and his team?
They wouldn’t accept it and it’s doubtful Biden would offer it. Prosecutors have wide immunity. Mike Davis’s threats to prosecute them for criminal violations of Donald Trump’s civil rights don’t hold water. For conduct that occurred in connection with Smith’s team acting as special prosecutors, the DoJ should pick up the tab for their defense, though Pam Bondi would do so kicking and screaming, because Trump.
Mike Davis is a cut out for Trump, as he issues the standard threats to exact biting revenge against anyone Trump perceives as either a threat or an opportunity for grift. A Biden pardon for Smith and his team wouldn’t relieve that pressure. It would be more likely to increase it, since Trump will shortly have control of the pardon power.
Sadly, it’s hard to imagine that there will be anything in the report re: the Jan. 6 case nasty enough to shame the current House into taking the invitation Smith is clearly making by dismissing w/o prejudice.
Shame the US is going to be run by folks who haven’t got any for at least the two years starting next January.
Final Report
Yes! Yes, report
Yes, let us see the report
All the things
That went wrong
Yes, history has waited so long
Yes! Yes, report
Yes, let us see the report
Disbelief, it won’t last
When it’s gone
We’ll finally have the past
And the memories we had
that were in a quagmire
Both the good and the bad
Still wrapped in barbed wire
But we feel in our hearts
That a seed has been sown
It is something quite new
It’s now something we own
Yes! Yes, report
Yes, let us see the report
All the things that went wrong
Yes, history has waited so long
Yes! Yes, report
Yes, let us see the report
For the seed that is new
has hold of what’s knowing and due
https://www.youtube.com/watch?v=7KCFtnAemG8
“Non, je ne regrette rien – Édith Piaf (INCEPTION Kick song) by Project String Quartet”
Is there a Statute of Limitations for presidential Impeachments? IANAL. Impeachment is not done by the courts. Different rules apply for a Senate trial. My dream scenario: Dems sweep the November 2026 elections and take control of the House and the Senate. Given his predilection for grifting and committing crimes, trump is impeached again by the new House in 2027 and is tried in the Senate. It takes a two thirds vote of the Senators to convict and remove him from office, but given that trump is a lame duck president, the Republicans (if suffering enough defeats in Nov. 2026) may be willing to dump trump. Then we get JD Vance….
SOLs are tools of the criminal law. Impeachment is a political process. No SOL applies. It affords the impeached politician voluminous due process, including requiring a 2/3 vote in the Senate to convict. The standard of proof is a civil one. Punishment is not loss of freedom, merely expulsion from office, and the possibility of being permanently barred from future federal office.
The insurmountable problem is that the impeachment process is broken, because the Republican Party is broken. As Trump’s two impeachments demonstrate, that party’s members will not vote to impeach Trump, regardless of his conduct.