The federal prosecution against former (and now future) President Donald Trump were extinguished on election night, 2024. Even the relentless Jack Smith conceded his prosecutorial goose was cooked, preparing to withdraw his voluminous election-eve filings against the Donald given the futility of further proceedings.
The Electoral (Lawsuit?) Calendar
Within hours of Donald Trump’s sweeping election night 2024 victory, the DOJ scrambled to unscramble its efforts to prosecute Donald Trump for election interference relating to January 6, 2021, and for allegedly illegally withholding classified documents. The stated reason for the about-face was Trump’s victory. NBC News reported:
“Justice Department officials have been evaluating how to wind down the two federal criminal cases against President-elect Donald Trump before he takes office to comply with long-standing department policy that a sitting president can’t be prosecuted, two people familiar with the matter tell NBC News.
“The latest discussions stand in contrast with the pre-election legal posture of special counsel Jack Smith, who in recent weeks took significant steps in the election interference case against Trump without regard to the electoral calendar.”
Yet Smith appears to have been quite focused on that election calendar, not only in instituting these aggressive prosecutions initially but in pursuing them aggressively following the Supreme Court’s momentous decision in Trump v. United States that cast grave doubts his authority to prosecute Trump for “official acts.” Smith proceeded with great alacrity and precise election-year timing, filing a gargantuan tranche of detailed allegations a month before election night.
In four volumes, Smith filed nearly 1,900 pages of documents in support of his 165-page brief arguing that Donald Trump was not entitled to presidential immunity for his actions. Smith’s “trove” of allegations that Trump “orchestrated criminal conspiracies as he sought to overturn his loss” was released on October 2, a convenient month before election day. Ironically, US District Judge Tanya Chutkan similarly declined to permit any electoral calendars to intrude, rejecting the Trump team’s bid to postpone the publishing of Smith’s material until after the election.
Chicken-and-Egg Game
Donald Trump’s re-election has firmly intruded upon the jurisprudence calendar. The court and prosecutor purported to be insouciant about election timing, yet the election timed out the legal actions. Prosecution became moot when Trump won, as did discrediting him before the election.
Yet Smith and Chutkan were dead in the legal water following the SCOTUS Trump decision. As previously reported by Liberty Nation News, “any conviction of the former president for mishandling of documents is unlikely post-Trump, as are any convictions for the various lawfare machinations conjured against him this election year (and boasted about by Biden during the recent debate).” LNN Legal Affairs Editor Scott D. Cosenza, Esq. explained:
“Many, if not most, of Trump’s acts and words Jack Smith planned to use as evidence of criminal wrongdoing are either core constitutional functions or official acts. Criminalizing any of these in light of the new standard seems like a fool’s errand. Mr. Smith has some tough decisions to make. Donald Trump has time on his side.”
Smith made the decision to double down, providing attack fodder for a Trump-hunting media. Politico pounced on October 2 with “11 damning details in Jack Smith’s new brief in the Trump election case,” stating that “Smith laid out evidence that Trump’s sole objective was to stay in power – not, as he and his lawyers have claimed, to exercise legitimate authority over election integrity.”
The same piece included allegedly incriminating behavior by Steve Bannon:
“Prosecutors, who had more access to telephone records and emails than the congressional committee that investigated Jan. 6, allege that Trump spoke to ally Steve Bannon by phone on Jan. 5 less than two hours before Bannon issued a prescient and provocative prediction on his War Room podcast that ‘all hell is going to break loose’ on Jan. 6.”
The motives driving Politico and the rest of the establishment media seem clear – but what of Jack Smith’s? Did he act against Trump and his associates to enact justice, or to sway an election? For here is displayed an additional legal chicken-and-egg situation: Steve Bannon and Peter Navarro were both convicted and incarcerated for refusing to cooperate with a congressional inquiry into Donald Trump’s actions which they believed to be protected by presidential immunity, a view which Trump v. US strongly reinforced. If Trump’s actions were not prosecutable, however, Bannon and Navarro were wrongly incarcerated for rightly standing on firm constitutional grounds. Now that Trump has won the election (likely at least in part because of public disgust at what seems a nakedly political prosecution), all of that has gone away.
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