In his column today, Rich aptly describes Biden Justice Department special counsel Jack Smith as a “delegitimizing machine” for both MAGA and anti-Trump factions, and his January 6 prosecution of Donald Trump as “a stick of TNT in the middle of an already fraught [2024] election.”
Start planning for that stick to be lit in September, a little over a month before Election Day.
A low-boil issue that we’ve discussed several times on the podcast bubbled over last week. For a long time, I assumed the courts would think it too unseemly to commence a trial of the Republican presidential nominee on the eve of the election. I’ve second-guessed myself on that over the past few weeks, reasoning that there is no norm Democrats and their prosecutors are unwilling to bulldoze in their quest to get Trump convicted in accordance with the campaign calendar (despite unambiguous Justice Department rules against election-driven prosecutorial maneuvers, by which Smith is supposed to be bound). Hence, why should the vaunted “60-day rule,” which is not even a real rule, stand in their way?
And sure enough, in pretrial proceedings in Smith’s other Trump prosecution, the Mar-a-Lago documents case, prosecutors announced that the Justice Department’s make-it-up-as-they-go-along 60-day rule — the unwritten guidance that, in the two months prior to an election, prosecutors should refrain from taking actions that might influence the outcome — does not apply in Trump’s cases. Their rationale? Because Trump has already been indicted, and everybody knows that, the trial of his case — the public parading of the witnesses and evidence against him, and what prosecutors are hoping will be a jury verdict of guilty — couldn’t possibly influence the election.
Sure.
The glee from the media-Democrat complex was manifest. At first, I thought: “Well, it remains to be seen whether the courts will allow themselves to the be the puppet on the end of the Democrats’ string.” But then, as ever, Trump’s too-clever-by-half lawyers undermined his position.
They had been insisting that there should be no trial of the Mar-a-Lago documents case prior to Election Day (a result that the complexities of litigation under the Classified Information Procedures Act (CIPA)is likely to produce in any event). But when Smith proposed a July 8 starting date for the trial, which is expected to take up to two months (maybe more), Trump’s lawyers countered by proposing August 12.
As Smith’s team suspects, this was a disingenuous gambit: Trump doesn’t really want an August 12 trial date; what he wants is a placeholder that will make it practically impossible for Judge Tanya Chutkan to schedule trial of Smith’s January 6 case in Washington, D.C., so that it starts before Election Day. But more than disingenuous, the Trump proposal was self-defeating: Again, because of CIPA, it is highly unlikely that the Florida case could be tried preelection anyway; but even if their August 12 proposal is thus illusory, Trump’s lawyers have now undermined their credibility to argue to Judge Chutkan that the Biden Justice Department must not be allowed to subject the Republican candidate to a criminal trial during the campaign stretch-run (when voting-by-mail will already be underway).
When they next try, expect Smith to counter, “But Trump himself suggested starting a two-month trial against him in mid-August.”
Understand, from Smith’s perspective, this is all about getting the January 6 case to trial pre-Election Day. That’s the one Democrats are passionate about — as Rich suggests, it’s their compensation for the failure of impeachment and the lack of insurrection proof.
Need more on that? Well, in an unusual move last night, the Supreme Court indicated that it may announce some rulings this morning. All signs are that the justices will issue their decision in the Colorado ballot-access case — the one in which the state tried to disqualify Trump from running, rationalizing that he is an insurrectionist under Section 3 of the 14th Amendment. Trump is nearly certain to win a sweeping victory (I believe it will be unanimous). But what really caught my eye this morning was the last paragraph of this report on the expected ruling from New York Times Supreme Court guru Adam Liptak:
If the court issues its decision in the Colorado case on Monday, it will have acted within a month of hearing arguments. If it follows that pace on the immunity case [i.e., Trump’s claim that he has immunity from prosecution on Smith’s January 6 indictment, which the Court has agreed to review], a decision could land in late May. And if Mr. Trump loses, pretrial proceedings would resume and the trial itself might start, barring other hurdles, in late September. [Emphasis added.]
That’s the plan, boys and girls. A felony trial of Trump on the January 6 charges, before a hostile Washington jury pool and an unfriendly Obama-appointed judge, beginning after Labor Day and running through Election Day. That is the Biden campaign strategy.
As Liptak notes, there are “other hurdles” — I’ve explained that the Court’s anticipated June decision in the Fischer Capitol riot obstruction case could have a drastic impact on the obstruction charges that are central to Smith’s January 6 case against Trump. But that aside, the plan is for the Republican presidential nominee to spend the weeks leading up to, and quite possibly through Election Day, on trial in a D.C. courtroom.
Oh, and by the way, you know all that speculation about how, if Trump wins the 2024 election, his Justice Department could just dismiss the case? Well, even if Trump wins (and I continue to believe it is unrealistic to believe he will), the Justice Department would not be under his control until 12:00 p.m. on January 20, 2025.
Remember, a president-elect is in no position to dismiss anything. There may be more than enough time between September and January to get Trump not only convicted but sentenced. Smith is banking on at least the former — and he’ll push for the latter, too, if it’s remotely attainable.