RUTHFULLY YOURS

I confess to being pleasantly surprised by reports this afternoon that Biden-Harris Justice Department special counsel Jack Smith will end DOJ’s two cases against President-elect Donald Trump: the so-called January 6 (J6) case in Washington, D.C., and the Mar-a-Lago documents case in Florida (currently on appeal to the Eleventh Circuit).

Pleasantly surprised . . . but not shocked.

As I tried to explain in a column we posted a short while ago, the expungement of the cases — whether by pardon or dismissal by the Justice Department — is deeply in the interests of President Joe Biden and the Democratic Party.

Biden, of course, will soon be pardoning his son, Hunter, pre-election avowals to the contrary notwithstanding. In a vacuum, extinguishing the felony gun and tax convictions would be seen as corrupt self-dealing. But once the Trump cases are dismissed, the Hunter pardon will be seen as part of a clemency package that moves the country away from the era of lawfare — the Biden-Harris administration’s exploitation of the government’s law-enforcement apparatus as a weapon against their chief political adversary.

Democrats, moreover, must comprehend that the lawfare campaign against Trump was deeply unpopular outside Trump-obsessed circles. It was regarded as un-American by much of the country. Further, it lulled Democrats into a false sense of security that made them think they could win a presidential campaign based on sheer anti-Trump animus and with a vapid candidate — Vice President Kamala Harris — who tried to run on vibes rather than substance and policy (having turned away from the woke-progressive ideas she held until about five minutes before the nomination was handed to her).

In addition, Biden would not be giving up much by dismissing the federal Trump cases. If it were pursued, it would take years to get the J6 case to trial. The same goes for the Mar-a-Lago case, assuming DOJ wins its appeal of Judge Aileen Cannon’s dismissal of the indictment (on finding that Smith’s special-counsel appointment violated the Constitution’s appointments clause), which is no sure thing.

DOJ is rationalizing that dismissal is compelled by the standing guidance of the Justice Department’s Office of Legal Counsel (OLC) that a sitting president may not be subjected to a criminal indictment and prosecution. That’s not at all clear in this instance, given that Trump was indicted while he was a private citizen — albeit a former president, which created immunity complications for the prosecutions. I don’t believe the OLC guidance requires the dismissal of charges brought before the president was elected (and, of course, Trump is not yet a sitting president; he’s a president-elect for the next eleven weeks).

All that said, though, the cases would have to at least be suspended under the OLC guidance once Trump took office. In effect, therefore, nothing would happen until Trump is out of office, presumably in 2029. At that point, there would still be years of work to do in order to get the cases to trial — including the litigation of weighty issues around whether the cases could properly be tried. By then, the facts of the cases would be nearly a decade old; it would make no sense to proceed against an 83-year-old, twice-elected former American president.

Most importantly, the voters have spoken. The facts of the Trump cases have been notorious for years. Despite them, the public has elected Trump president — not only by a wide Electoral College margin but (it appears, at this time) also by a popular majority. Biden’s action would pay appropriate heed to that political fact. This can only help Democrats going forward, even if some of them will be upset about it in the near term.

A salient caveat: Dismissal motions by the Biden-Harris DOJ would not dispense with a legal complication I addressed in my recent three-part series on the future of anti-Trump lawfare (see here). The Constitution gives the Justice Department unilateral authority to decide whether to proceed with a prosecution, even one in which an indictment has been filed; nevertheless, the ill-conceived provision that governs dismissals — Rule 48(a) of the Federal Rules of Criminal Procedure — states that “leave of court” is required before an indictment is dismissed.

As I elaborated in the lawfare series, to be constitutional, this “leave of court” requirement must be deemed ministerial: I.e., the trial judge has no discretion to decline to allow DOJ to dismiss an indictment, because the court has no authority to force DOJ to proceed with a prosecution. Some judges, however, have used the “leave of court” provision to make mischief — most notoriously Judge Emmet Sullivan of the Washington, D.C., federal district court, who refused to grant leave for the Trump Justice Department to dismiss the indictment against Michael Flynn (briefly Trump’s first national-security adviser).

In the lawfare series, I predicted that Judge Tanya Chutkan, the Obama-appointee presiding over the J6 prosecution, would refuse to grant DOJ leave to dismiss the case. But my assumption was that it would be the Trump-Vance DOJ seeking the dismissal of the case against Trump. Given that the Biden-Harris DOJ’s special counsel is apparently going to make the Rule 48 application, and that DOJ can argue that dismissal is consistent with the spirit of the OLC guidance against prosecuting a sitting president, I believe Judge Chutkan will be favorably disposed. With the Democratic administration abandoning its lawfare, and with the incoming Republican administration opposed to any prosecution of Trump, I doubt Judge Chutkan — ostensibly a neutral arbitrator — will want to be seen as a Trump-obsessed bitter-ender who insists on maintaining a case she has no power to make DOJ prosecute.

The situation is more straightforward in Florida. The Biden Justice Department has already “lost” the case in the sense that the indictment has been dismissed by the trial court. It should be able to dismiss its appeal of that ruling without incident (and, in any event, I doubt the Eleventh Circuit wants to wade into lawfare if it doesn’t have to).

Welcome dismissals of the Biden-Harris Justice Department’s federal prosecutions would have no legal effect on the state prosecutions of Trump in New York and Georgia. Nonetheless, such dismissals may generate political cover for the prosecutors (Manhattan district attorney Alvin Bragg and Fulton County, Ga., DA Fani Willis) to dismiss their cases in deference to the Biden-Harris administration’s determination that further prosecution of the incoming president is not in the national interest.

If Bragg is not moved to stand down, Biden’s action could help persuade Governor Kathy Hochul to pardon Trump — especially if she is reading the election returns, which indicate that Trump did surprisingly well in New York (Harris won New York City by nearly 20 fewer points than Biden had won it in 2020, and Trump may have gotten close to 45 percent of the vote statewide). A dismissal of the case, or a pardon of Trump, would probably not upset anyone other than anti-Trump progressives — who, to be sure, are influential in New York politics (they are Bragg’s political base).

The pardon process is more complicated in Georgia, where a state pardon board decides whether to grant clemency. (The governor — in this instance, the popular Republican governor Brian Kemp — cannot do it.) Still, the Georgia case is a debacle: Willis faces disqualification claims, and immunity has not even been litigated yet. Even absent a pardon or dismissal, the poorly conceived RICO case could collapse of its own weight; if it doesn’t, it would surely be suspended while Trump is in the White House during the next four years.

As I’ve detailed in a column at Fox News (and in the second installment of the aforementioned lawfare series), the New York case is the more urgent matter. Judge Juan Merchan, an activist Democrat who has been hostile to Trump throughout the proceedings, has set a schedule according to which he plans to rule on Trump’s immunity claims next Tuesday (November 12) and then — assuming, as I do, that he would deny the claims — sentence Trump on November 26. It would be best if the case — which is a ridiculous, unabashedly selective prosecution — were dismissed. If it is not, one off-ramp could involve Bragg agreeing with Trump’s lawyers that Trump should be entitled to appeal Merchan’s immunity ruling before any sentence is imposed. (Or, Trump could ask the New York appellate courts, or even the federal courts, to postpone the sentencing while the immunity ruling is appealed.) Such an appeal could take well over a year, and, in the interim, during Trump’s presidency, proceedings would likely be suspended — with little chance, I suspect, to be revived come 2029.

In any event, President Biden appears poised to do the right thing by having his Justice Department dismiss the federal cases against Trump. That he has personal and partisan motives would not detract from his doing the right thing. Hopefully, the feds’ example will influence the progressive Democratic state prosecutors to stand down. Regardless of how one feels about Donald Trump, it is not good for the country and its governance to have a president beset by criminal proceedings.