Constitution in Crisis #6: Playing a Bad Hand Well

Jack Smith filed motions yesterday to dismiss the two federal cases he and his team at the DOJ have painstakingly put together over two years. They have defended these cases against spurious Trump attacks, a hostile and lawless District Court, a fairly mind-boggling Supreme Court opinion on presidential immunity, and many other bumps in the road. Throwing the two cases away must have felt like Miriam putting Moses in the Nile.

But Smith has made the best of a very bad hand dealt by this crazy concatenation of forces, culminating in Trump’s victory. Given the cards he had to play, he’s played them smartly. Even as Trump escapes punishment—a foregone conclusion as of November 5—Smith has left Trump in a position far from the fully triumphant one he believes he deserves.

Smith wisely began this process in the DC District Court before Judge Chutkan. His six-page motion scored some important points. Trump will try to erase them when he takes office, but it’s not clear that he can.

First, Smith made it clear that the government had lost no confidence in the charges against Trump: “The government’s position on the merits of the defendant’s prosecution has not changed. But the circumstances have: as a result of the election...” He again stated for the record that the Department of Justice stands behind the extremely serious charges in the case—surely the most scathing charges ever leveled at a president.

Trump was quick to seize on Smith’s motion and proclaim it as some sort of exoneration, but that is a clear non sequitur. Within the legal system—and therefore, more likely, the historical record—Trump’s indictment remains valid.

Second, Smith anchored his motion in the Office of Legal Counsel (OLC) memo with which we became all too familiar during Bob Mueller’s tenure as special counsel. That memo canvassed a range of possible support for the idea that the president could not be subject to prosecution during their tenure, ultimately concluding that both the practical burden of defense on the president and the impairment of the institutional prestige of the office forbid prosecution while a president serves. It is likely to figure in skirmishes between the parties in the next two months. But for now, it leaves Jack Smith and the department as captains of their ship, even as the ship steers into the shoals where it will run aground. Smith’s decision reflects long-standing department policy. (OLC opinions have the force of law within the department in the sense that they are binding on the executive branch.)

Third—and most important—Smith’s motion to dismiss the case asks Judge Chutkan to do so “without prejudice.” That’s legal language meaning the case is put on ice, not buried. A case dismissed without prejudice can still be revived. The most important line in Smith’s motion, in my view, is this: “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.” Translation: the case may go into hibernation, to reawaken when Trump leaves office. On this point, Smith subtly quotes the OLC opinion, saying, “once the president’s term is over or he is otherwise removed from office by resignation or impeachment.” Leaving no doubt about the bona fides of the case, Smith closes by advising the court, “this outcome is not based on the merits or strength of the case against the defendant.”

Judge Chutkan wasted no time granting the department’s motion, and as of yesterday afternoon, it was case dismissed.

Shortly before that happened, Smith filed a similar motion in the Eleventh Circuit Court of Appeals, where the Mar-a-Lago case was lodged as the DOJ argued to reverse Judge Cannon’s considered—yet wacky—dismissal of that indictment on the ground that Jack Smith’s appointment was not authorized. Importantly, however, that motion pertains only to Trump. Recall that there are two co-conspirators in the case: Walt Nauta and Carlos De Oliveira. Trump can pardon them after he’s in office, but it’s not as straightforward as he may believe. I’ll circle back to this below.

There’s no getting around the fact that, in a certain sense, the result of these cases is a catastrophe for the legal system. Trump has escaped accountability for breathtaking crimes against the Constitution. Many things had to break his way for the criminal justice system to be so utterly subverted—not least the decision of the American people to return him to office after witnessing more than 1,000 marauders, driven by his whip hand, attack the United States Capitol to prevent the peaceful transfer of power.

But Trump also benefited from other near misses and astonishing good breaks, from the random selection of Aileen Cannon for the Mar-a-Lago case to Mitch McConnell’s momentous decision not to vote to convict in the second impeachment, despite being persuaded of Trump’s guilt.

Be that as it may, here we are. Smith has precious little time to try to prevent Trump from razing the prosecutions to the studs and preserve a full historical record of the crimes committed by the president-elect and his circle. Some commentators protested yesterday’s motions to dismiss, arguing there might have been a few moves left to make in the January 6 case before Chutkan. But those moves could have been mowed down come January, and more importantly, waiting could have delayed its resolution past January 20. Smith played his cards at the right time.

In the January 6 case, the most important parting achievement was having the case dismissed without prejudice. Smith knew that courts nearly always permit such motions unless they find that it’s an effort to harass the defendant, which, under the circumstances, it plainly wasn’t. It has to stick in Trump’s craw to realize the implications—that this most damning of cases is not quite dead and might yet return in a future administration.

It’s not clear how or whether Trump can drive a stake through its heart. The case is no longer on Judge Chutkan’s docket, so a motion to dismiss it with prejudice makes no sense. It’s theoretically possible to refile the charges only to attempt to dismiss them with prejudice. However, I spoke today with sophisticated federal court practitioners about this prospect, and they all agreed on two points: first, they had never heard of such a maneuver or anything like it; and second, it’s precarious for Trump because there is no guarantee Chutkan would grant the motion.

A further wrinkle is that if the case were brought in 2029, the statute of limitations might have run. But again, Trump cannot fully stitch up the possibility. First, the OLC opinion itself makes clear that Congress could always extend the statute, and a Democratic majority might well do that. Second, a court could hold that the statute of limitations automatically be stayed, given the legal incapacity to try Trump as a sitting president.

Trump may well believe he’s holding the ultimate trump card: the ability to pardon himself. But another OLC opinion from the Nixon era firmly forecloses that possibility, holding that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” That holding, of course, has never been tested in court, and it’s tricky to chart out how it would be served up for adjudication. But it’s far from a sure thing, even with Trump’s disregard for constitutional limitations.

The welter of considerations and counter-considerations between today and any eventual resumption of the case give all of this the quality of being dealt a royal flush, assuming there is political will to revive the case against Trump come 2029. But the abiding point, it seems to me, is that even having defied the odds to return to office, Trump may not be able to guarantee that the charges are dead and buried once and for all. In his current presumed omnipotence, he won’t like that.

The wrinkle in the Mar-a-Lago case doesn’t concern him personally. Smith’s motion is to dismiss the case as it pertains to him. But remember there are two other co-defendants in the case: Walt Nauta and Carlos De Oliveira, who allegedly carried out brazen obstruction of the government on Trump’s command and with his careful oversight.

Nauta and De Oliveira have won their own ancillary wagers by remaining loyal to Trump and presumably expect—and will receive—presidential pardons. But before then, there will be the first of many conflicts between the DOJ’s institutional interests and Trump’s personal interests in the coming four years. Judge Cannon’s July dismissal of the case rests on a very dubious opinion questioning the legality of Jack Smith’s appointment. If it were to stand, it would cripple the department’s ability to use special counsels under their regulations.

That affects not just Jack Smith but also figures such as Mueller, Robert Hur, John Durham, David Weiss, and future appointees. Trump only cares about his own case, but the DOJ wants this cloud over its previously well-accepted power to appoint special counsels removed. That makes it in the department’s strong institutional interest to have the appeal regarding Nauta and De Oliveira play out in the Eleventh Circuit, which is widely expected to reverse Judge Cannon.

Such a reversal would vindicate a legal position Trump has railed against. He championed Cannon’s opinion while the entire legal community trashed it. If he takes office on January 20 before the Eleventh Circuit rules and orders the DOJ to drop the case, it will harm the department to indulge his own vain and legally irrelevant embrace of Cannon’s work.

The upshot, in my view, is that Smith has taken the weak hand dealt to him by many forces—especially the American people—and played it wisely. This may keep Trump from resting easy, knowing there’s always a looming chance of accountability for his post-2020 election conduct. It may also maneuver him into one day, as leader of the executive branch, fighting against a holding from Judge Cannon that he previously extolled.

All in all, well played by Smith. Now we stand by and hope that he will provide the American people and history with a full-bodied account of the facts of Trump’s alleged crimes, as well as the conduct and crimes of Trump’s circle that he didn’t charge. That report would at least leave a full, accurate record for Americans to absorb and history to assess. History may be the propaganda of the victors, but Trump’s triumph may, in the painfully long run, prove not to be the last word.

Talk to you later.