Friday, November 18, 2022

Living In The Present That Was The Future In The Recent Past

Second, Garland is unlikely to leave the decisions of whether to recommend charges against Trump or his confederates (nor the responsibility for prosecuting them) to his DOJ staff or a U.S. attorney (all of whom are Biden appointees). Instead, he is likely to appoint a special counsel (just as former Deputy Attorney General Rod Rosenstein appointed Mueller). Indeed, the DOJ’s special counsel regulations exist precisely to maintain some degree of distance between political appointees in the DOJ and investigations of political adversaries of the current president or his party.

But, of course, naming a special counsel will itself be an overt step. And should it happen (which looks increasingly inevitable), it will cause a political earthquake that will make the thunderclap of the Mar-a-Lago search seem like a minor summer rain shower. Accordingly, even assuming that Garland’s team has assembled enough evidence to merit the appointment of a special counsel, the AG might decide to wait until after the midterm elections to announce the appointment of the prosecutor who will be charged with overseeing the investigation of the former president. 

Earthquake, though?  Yeah, seems not.  Garland leaked this early enough tout le Twitter discussed it to death (I won't bore you), so we all know it was a matter of when, not if.  

I thought it a bad idea which would just slow down investigations as the special prosecutor came up to speed.  And there are takes like this already:

Yeah...no. And: no.  When I see the special prosecutor as the AG in proxy over these criminal investigations of this suspect, it makes sense to me.  Smith will be the person making decisions over the investigations of Trump.  Like the AG, that doesn't mean he will be the person taking those cases to court (although, to emphasize the importance of the cases in trial, he may; that's another matter).  Given the complexity of the cases, however, he may stay on Olympus and let career people argue in court, especially since it's a bad idea to swoop into a case and take it to trial when you haven't worked it into being ready to indict and try.  Smith will be making the decisions, IOW, and that won't leave him much time to spend being the lead counsel on those cases. (Caveat: If Smith does go to court because of the notoreity of the case(s), he will most likely allow others to carry the burden of presenting the case/cross-examining witnesses.)

Consolidating them into one also won't happen for a number of reasons I won't bore you with.  Suffice to say the DOJ doesn't want that and Trump could successfully challenge it, splitting the cases and causing even more delays and confusion.  So Smith won't be playing super-lawyer; he'll be playing Head Lawyer in Charge, deciding thumbs up/thumbs down on what goes to indictment and what doesn't (or, since my criminal procedure is almost non-existent, what goes to a grand jury and what doesn't.)  For Smith to try to play lead counsel for every criminal case DOJ might pursue against Trump would be a disastrous mistake.  Try to imagine Garland (or any recent AG) doing that, and you'll quickly realize it doesn't happen.  Smith may appear on the pleadings; but he'll almost certainly never appear in court.

As I say, you don't do that unless you know the case inside out; and special counsel are too busy overseeing too much to take on that task, too.  Just ask Elmo (who probably would, because he doesn't know better). 

Besides, there are clouds, and there are silver linings:
According to reports, Trump lawyers are allegedly "dreading" the appointment of a special counsel. When asked why a special counsel worried Trump's lawyers, CNN's Paula Reid said it's because the appointment signals that the investigations against Trump are intensifying.

"There's a lot of outstanding questions in that investigation, including the sorting through of classified material, of privilege, personal material ... We knew this was going to take a while, but by appointing a special counsel, they have sent a message that -- particularly the Mar-a-Lago investigation and January 6 -- they're going to continue, they are possible even ramping up," Reid said.

Ordinarily I'd discount such reporting because seasoned lawyers know how likely the client's shit is to encounter the prosecutor's fan; but these are Trump's lawyers.  I still don't understand why anyone represents the man in anything, and I don't mean because he's such a waste of space.  I mean because he shreds his own defenses every chance he gets. 

That's what I was waiting for; although yes, it's clear Eric doesn't know what the word means. Probably true for a lot of words for Eric.

"I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice," [Special Counsel Jack] Smith said. "The pace of the investigations will not pause or flag under my watch."

That's what really has Eric upset.
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