THE COLLAPSE OF ANTI-TRUMP LAWFARE

National Review

 

The Collapse of Anti-Trump Lawfare

By Andrew C. McCarthy

November 25, 2024 4:21 PM

 

A judge has granted Jack Smith's request to dismiss the 2020 election-interference case against Trump.

 

Biden-Harris Justice Department special counsel Jack Smith has formally asked Judge Tanya Chutkan to dismiss the so-called January 6 case — the 2020 election-interference prosecution of President-elect Donald Trump. Late Monday, Chutkan granted the motion.

 

In consultation with DOJ’s Office of Legal Counsel (OLC), Smith determined that the long-standing DOJ guidance on criminal proceedings against a sitting president dictated that the current indictment in the case be dismissed without prejudice to the potential reindictment of the charges following Trump’s anticipated exit from office in January 2029.

 

Smith made the move with the consent of the president-elect and his defense lawyers. This makes sense. The events in the indictment occurred around the 2020 election. By 2029 they will be time-barred under the five-year federal statute of limitations. Ergo, there would be little point in reindicting them at that time.

 

The OLC guidance dates from the Watergate era. It was refined in the Clinton era to deal specifically with the question of whether a sitting president could be indicted with the proceedings then held in abeyance until after his term in office ended. The Office of Legal Counsel concluded that even this could make it impossible for the president effectively to carry out his duties; its guidance cites the burden of public stigma and opprobrium caused by criminal charges, coupled with the mental and physical burden a president would bear due to the need to prepare a criminal defense.

 

The 2000 OLC guidance acknowledged that dismissing charges only to recharge later could create a significant statute of limitations issue — because the president’s term is four years long and the statute of limitations calls for charges to be filed within five years of the alleged crime, most pre-presidency criminal acts would be shielded from prosecution (i.e., any that occurred over a year before the president took office). The Office of Legal Counsel conjectured that a court might solve this problem by “equitably toll[ing]” (pausing or suspending) the statute of limitations. But there is no assurance that a court could or would do so — particularly when the American public had elected the president despite the charges against him.

 

Obviously, this sits uneasily with the claim that presidents are not above the law.

 

Smith will undoubtedly follow suit in Florida and withdraw the government’s appeal to the Eleventh Circuit of Judge Aileen Cannon’s dismissal of the Mar-a-Lago documents indictment. Smith has been under a directive to alert both Judge Chutkan and the Eleventh Circuit of his views about further proceedings by next Monday, December 2.

 

Smith’s actions also strengthen Trump’s hand in seeking the dismissal of Manhattan district attorney Alvin Bragg’s charges against him. Last week, Trump was given until December 2 to file a new motion to dismiss based on his election as president (supplementing his earlier motion to dismiss based on the Supreme Court’s July 1 immunity ruling).

 

In arguing that the jury verdicts of guilty should be vacated and the indictment dismissed, Trump’s lawyers will surely contend that further proceedings in the Manhattan case — even though it is a state prosecution, unlike Smith’s federal cases — would pose the same problems of harm to the nation by compromising the president’s capacity to perform his unparalleled constitutional responsibilities.

 

The cases against Trump are either bogus (Bragg’s case), legal reaches (Smith’s January 6 case and Fulton County DA Fani Willis’s similar RICO case), or already dismissed (Smith’s Mar-a-Lago documents and obstruction case — the strongest of the bunch). Because of that, I agree with the dismissal of the charges in these cases. I must say, however, that I am unpersuaded by the contention that the mere existence of charges held in abeyance — rather than their dismissal — is required by the potential stigma and anxiety they portend.

 

Trump ran for president with the national electorate well aware that he was under federal charges and had been found guilty in Bragg’s case. He won decisively (even if “landslide” descriptions are an exaggeration), beating his Democratic rival in both the Electoral College and the popular vote. If there is an enduring stigma that will affect Trump’s performance, I don’t detect it.

 

Of course, the Justice Department has to apply a standard for all future cases, not just the strange cases brought against Trump. It is not difficult to imagine situations where there would, indeed, be great opprobrium and anxiety were a sitting president confronting criminal prosecution upon leaving office.

 

Anti-Trump lawfare has collapsed.