The Next Steps (For Us And For Special Counsel Jack Smith)

Reality bites.

It’s Monday, Chaos Monkeys, and we’re still not happy.

We're still grappling with last week’s election and trying to work out how to fight back against a president-elect who promises to rain down vengeance on his enemies, the law be damned.

It’s a bitter pill for two podcasting lawyers to swallow. We’ve spent eight years documenting Trump’s crimes and talking about how best to hold him accountable. Now that he’s won, accountability is off the table. And even if Democrats retake Congress in 2026 and the White House in 2028, Trump’s fascist takeover of one of our two main political parties and the highest court in the land is complete.

But what is on the table is important, because now more than ever we all need to pull together to protect reality. In a era of lies — we can bury the phrase “alternative facts” forever, TYVM — documenting the truth is itself an act of resistance. And if we ever want to get back to a society where the rule of law matters and no one is above it, we’re going to have to work doubly hard to combat the coming assault on objective reality.

So we’re going to keep on talking about Trump’s crimes, past and future. Because the fact that he’s a criminal insurrectionist madman may not have made a political difference, but we’ll be damned if we let them rewrite history and gaslight the nation into thinking it never happened. And if that sounds alarmist, remember that Trump’s henchmen in the House have already tried to un-impeach him, which is definitely not a thing.

So with that said, let’s have an unpleasant discussion about why Special Counsel Jack Smith must immediately wind down his two criminal cases against Trump.

The Spectacle of an Indicted President Still Trying to Serve as Chief Executive Boggles the Imagination

That fateful line was penned in 1973 by Assistant Attorney General in the Office of Legal Counsel Robert Dixon. President Nixon, fearing that he would be indicted for orchestrating and then covering up the Watergate scandal, asked Dixon to draft an OLC memo on the question of whether sitting presidents could be indicted. Dixon concluded that, although every other executive branch official could be indicted while in office, presidents could not.

“[I]n view of the unique aspects of the Office of the President, criminal proceedings against a President in office should not go beyond a point where they could result in so serious a physical interference with the President’s performance of his official duties that it would amount to an incapacitation,” he wrote. He counseled that “the Presidency would be derailed” if the sitting president were preoccupied with trial proceedings and unable to perform his official duties. Oddly enough, Dixon based his analysis on the “separation of powers,” despite the fact that, were the Justice Department to bring charges against the president, the prosecution and defendant would both be members of the executive branch.

Dixon suggested that indicting a sitting president and deferring proceedings until the president’s term ended might “minimiz[e] direct interruption of official duties,” but should also be rejected because “an indictment hanging over the President while he remains in office would damage the institution of the Presidency virtually to the same extent as an actual conviction.”

In 2000, when Bill Clinton feared that he might be indicted for perjury, he asked his own Assistant Attorney General Randolph D. Moss, to draft an updated OLC memo revisiting the issue. Moss, who is now a federal judge, agreed that Dixon’s reasoning was correct.

But OLC memos are not the law, and this issue was merely theoretical until Chief Justice John Roberts adopted it in Trump v. US, the immunity decision that showed the Supreme Court’s willingness to allow Trump to evade prosecution for any and all crimes.

“In the criminal context, the Justice Department has long recognized that the separation of powers precludes the criminal prosecution of a sitting President,” the Court wrote. And with that, six conservative justices ensured that any prosecution of Trump for federal crimes would be mooted if he managed to take back the White House.

The End of the Beginning … of the End

On Friday, Special Counsel Jack Smith moved to vacate all pending deadlines in the D.C. election interference case against Donald Trump for his efforts to steal the 2020 election.

As a result of the election held on November 5, 2024, the defendant is expected to be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025. The Government respectfully requests that the Court vacate the remaining deadlines in the pretrial schedule to afford the Government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy. By December 2, 2024, the Government will file a status report or otherwise inform the Court of the result of its deliberations. The Government has consulted with defense counsel, who do not object to this request.

Judge Tanya Chutkan granted the motion just a few hours later, and Smith is widely expected to simply drop the election interference case along with the Eleventh Circuit appeal of Judge Aileen Cannon’s order dismissing the stolen documents case on the grounds that Smith was not legally appointed as Special Counsel. (Presumably Trump will go back to thinking special counsels are perfectly legal once he’s in charge of the Justice Department again.)

Some folks insist that Smith should stick around until January 20th, 2025, perhaps even procuring indictments against Trump’s as-yet-unindicted co-conspirators in the election interference case, including Rudy Giuliani, John Eastman, Boris Epshteyn, and Sidney Powell. They argue that Trump should be forced take the political hit for making good on his threat to fire Smith “within two seconds” of assuming office and pardoning himself his co-conspirators.

But Trump already mounted a literal coup after a four-year public orgy of corruption. He used his office to blackmail a foreign leader into announcing a sham investigation of his political rival. And he’s vowed to pardon every January 6th rioter. So it’s a bit farfetched to expect him to pay a price for doing exactly what he said he would — particularly if it’s just the first act in another four-year crime spree blessed by a supine Supreme Court.

On the other hand, the special counsel has amassed considerable evidence documenting Trump’s crimes, and telling the truth for posterity matters. If Smith hunkers down and demands to be fired, that evidence could be a casualty in the fight.

Under § 28 CFR 600.8(c), a special counsel must produce a final, confidential report to the Attorney General “explaining the prosecution or declination decisions.” In the case of Special Counsel Robert Mueller, AG Bill Barr tried very hard to pre-spin the report, taking advantage of the delay between delivery and the public release to make public statements implying that it was wholly exculpatory. (It was not.)

If Smith winds down his cases while Merrick Garland is still attorney general, the report has a chance of being preserved for history and potentially published. If he waits to be fired in January by whichever sycophant Trump picks as Garland’s successor, there will be no report at all. At best, the evidence will be shredded. At worst, it will be used to seek revenge on Trump’s enemies.

Under 28 CFR § 600.9, the attorney general must “notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” if he fires a special counsel or disregards the recommendations of the final report. But the attorney general may “determine that public release of these reports would be in the public interest.” Which means that the clock is ticking for Smith to draft a comprehensive report and submit it to Attorney General Garland if he has any hope of his work becoming public (or maybe even preserved).

And so, just as we are all going to have to do a lot of deeply unpleasant shit in the next four years to protect democracy and truth, Smith has no choice but to end his investigation now to ensure that the truth doesn’t become one more casualty of the upcoming disaster.

The reality is that Trump will never face justice in any court of law. The bad guys won this round. And the only way that report documenting his crimes ever sees the light of day is if Smith persuades Garland to release it to the public before January 20, 2025.