WASHINGTON—One by one, the criminal cases against Donald Trump are falling by the wayside, with the most important—federal prosecution for his role in the Jan. 6, 2021, attempted coup d’etat—officially dying on Nov. 25.
And just the week before, Trump’s lawyers demanded State Supreme Court Justice Juan Merchan in Manhattan completely drop New York’s case against Trump even though a jury previously convicted the Republican president-elect on 34 felonies.
Those felonies involved illegal hush money to adult film star Stormy Daniels, and a cover-up of those illegal checks as business expenses, not campaign contributions.
The common theme in dropping the cases was the U.S. Supreme Court’s 6-3 ruling, including by the three Trump-named justices, that any present and future president is, for all practical purposes, immune from criminal prosecution for actions while in office, even after departure.
Justice Department Special Counsel Jack Smith cited that High Court ruling in announcing his decision on both the Capitol invasion case and in another, barely breathing, federal case against Trump, in U.S. District Court in southern Florida.
There, Trump-named Judge Aileen Cannon threw out Smith’s case against Trump’s illegal removal of top secret papers to his Mar-a-Lago estate. Judge Cannon ruled Smith was illegally appointed. Smith’s office appealed her ruling. He expects the Justice Department will drop that appeal, too.
And Justice Merchan in New York is pondering the High Court’s impact on his sentencing decision in the hush money felonies case. As a last-ditch attempt to keep it alive, Manhattan District Attorney Alvin Bragg proposed postponing sentencing for more than four years, until after Trump’s term ends.
In announcing he’s dropping the federal prosecutions, Smith made clear he still believes the Justice Department has a strong case against Trump in D.C. and in Florida. His statement said Trump “resorted to crimes,” and that inciting the invasion topped and followed other criminal acts, in seven separate and desperate attempts to hang onto the presidency he lost four years ago.
The Trump mob trashed the Capitol, sent lawmakers, staffers, and reporters fleeing for their lives, and delayed the mandated congressional certification of Democratic nominee Joe Biden’s electoral vote defeat of Trump.
But with Trump preparing to commandeer the Oval Office again, “The Constitution requires that this case be dismissed before the defendant is inaugurated,” Smith said in court papers filed with U.S. District Judge Tanya Chutkan in D.C.
“That prohibition is categorical and does not turn on the gravity of the crimes charged, the strength of the government’s proof, or the merits of the prosecution, which the government stands fully behind,” Smith wrote. His statement also covers the federal circuit court in Atlanta, which has DOJ’s appeal of Judge Cannon’s pro-Trump ruling.
Five defending police officers later died as a result of the insurrection, and more than a hundred were injured. Almost a thousand of the invaders have been indicted, and hundreds have been convicted. Trump calls them “patriots” and plans to pardon them all.
Smith plans to resign his Special Counsel’s position two days before Trump’s inauguration next year. Trump has threatened to arrest and jail Smith and other political “enemies,” once he’s president. Smith, in turn, is mandated to issue a report on the prosecution of the two cases, but Trump’s DOJ could sanitize its strong defense of the prosecutions—or sit on it.
Smith admitted presidential immunity the Supreme Court granted Trump in July, his election to a new White House term in November, and his pending inaugural in January changed the landscape.
“As a result of the election held on Nov. 5, 2024, the defendant, Donald J. Trump, will be inaugurated as president on Jan. 20, 2025,” Smith’s motion to Judge Chutkan said. “It has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting president.
“But the department and the country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected president.”
The fate of the two federal cases, and the indefinite postponement in New York leaves a fourth case, and the second involving the election four years ago, barely breathing in Fulton County (Atlanta) Court. There, Atlanta D.A. Fani Willis charged Trump and more than a dozen co-defendants with racketeering and conspiracy to steal key swing state Georgia’s electoral votes.
Trump’s lawyers successfully stalled that case, too, though Willis convinced three co-conspirators to “sing.” She has a powerful piece of evidence against Trump: The recorded tape of Trump’s testy post-election phone call to Georgia’s top elections official, Secretary of State Brad Raffensperger, ordering him to “find” 11,780 popular votes—i.e. commit fraud—to win Georgia by one ballot. Raffensperger refused.
A check of websites, including social media, of civic and/or legal organizations that followed the Trump trials yielded two reactions. “What was Chief Justice John Roberts thinking?” when he wrote the High Court’s pro-Trump immunity ruling, asked Fred Wertheimer, head of Democracy 21.
Key majority lawmakers on the House’s January 6 investigating committee were silent. They included Chair Bennie Thompson, D-Miss., the panel’s two Republicans—since forced out of their political careers by Trump loyalists—Liz Cheney of Wyoming and Adam Kinzinger of Illinois, and Rep. Jamie Raskin, D-Md., a constitutional law professor on leave and lead prosecutor of the second Trump impeachment trial in the Senate. That trial, using the panel’s evidence, covered Trump’s role in ordering, aiding, and abetting the insurrection.
The other exception was Public Citizen. Co-President Lisa Gilbert was steaming about Trump.
She called Smith’s decision “an expected but troubling conclusion to the DOJ criminal investigation case into former and future President Trump…. Special counsel Jack Smith made clear the choice was made for him: DOJ policy does not permit prosecution of a sitting president.
“At least for now, Trump may escape justice for his role in trying to overturn the 2020 election, fomenting the January 6 insurrection, and improperly handling classified documents. But his ability to escape prosecution does not retroactively validate his illegal, unconstitutional, and democracy-destroying activities…. If not the courts, history will judge them appropriately.
“At Public Citizen, we believe no one should be above the law, criminality by the powerful must be punished, and attempting to overturn the nation’s election and fomenting political violence should be harshly sanctioned. Donald Trump aims not just to excuse but to normalize all this behavior. Permitting him to succeed would enable a slide into authoritarianism. The American people must not let that happen.”
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