Not So Fast

My new one @Slate: Jack Smith’s Big New Jan. 6 Brief Is a Major Indictment of the Supreme Court https://t.co/b28LdmgX5w pic.twitter.com/YPOdDDEW9T

— Rick Hasen (@rickhasen) October 2, 2024

The fact that no jury may pass on the deadly serious allegations in Smith’s complaint will do more than simply let Trump and others off the hooks for their potential crimes. It will make future criminal activity related to American elections much more likely. And it all could have been avoided if McConnell, Garland, and especially the Supreme Court had done the right thing.

The last sentence is Hasen’s thesis: that a three-legged stool of mal(or mis-)feasance led to our current situation. On the “failure” of Garland, I call bullshit. And further: Hasen should know better.

How do we have details from Boris Epshteyn you didn't previously know about? Probably that first warrant, obtained on April 21, 2021.

How do we have Scavino's testimony on how Trump uses Twitter? An EP fight that started in June 2022.

This is public--no one knows it. https://t.co/ynnu4s1oL3

— emptywheel (great blue heron) (@emptywheel) October 3, 2024

April of 2021 is, what, 3 months after Biden’s inauguration? Somewhere in that time frame Garland was approved as AG.  In July 1, 2021, the Select Committee to investigate the J6 attack was formed. That committee produced a report in 2022, a report Jack Smith has clearly relied on.  That’s not quite the breathless speed of a TV show or a courtroom movie drama, but considering the amount of information gathered, a fairly rapid response.

That first warrant in April, 2021, touched off 9 months of fights over executive privilege. The simple fact is, you can’t just assign a special prosecutor, a la Ken Starr, and give him a remit to “find something.” (That never should have happened to Clinton, or to Hunter Biden.) Remember all those election challenges Trump lost? They were uniformly asking courts for discovery power to find information they didn’t have in order to establish a case for fraud they could then prove. 60 times the court told Trump: it doesn’t work that way. In criminal cases the prosecution has to first have reasonable suspicion, and then grounds to establish probable cause in order to further an investigation so they can prosecute. That kind of evidence seldom falls in your lap, especially in a case as complicated as the one against Trump (as Smith’s latest brief shows). (Starr was a prosecutor who had to find something, and dug around until he did. Smith had reasonable suspicion, and then developed that case into a grand jury indictment.)

Hasen knows this; or he should.

So 9 months of delay to even be able to gather preliminary information; and another privilege fight started in June 2022. These kinds of things tend to delay bringing charges, because it delays investigations. Until the privilege issues were resolved, the investigations were stalled. And Smith wasn’t appointed in April, 2021, probably because Garland didn’t want to appoint another Ken Starr and say: “Find something.” Besides, Smith wouldn’t have cut through two years of privilege fights any faster than Lisa Monaco could. Special prosecutors don’t have magical swords for cutting such Gordon knots.

A lot of the delay is on Trump. Ironic because now Trump is complaining the calendar, three years later, is working out against him;

Trump didn’t like Jack Smith’s filing. pic.twitter.com/u9kNgTCUMH

— Ron Filipkowski (@RonFilipkowski) October 2, 2024

But he was never in control of it, any more than Smith was.

And I still contend if the felony conviction in New York is not enough to make people not vote for a felon, a conviction in D.C. wouldn’t sway the voters, either.

Though maybe the first conviction already has. We’ll just have to wait and see.