Y ou might have noticed that the Left didn’t take it very well when the Supreme Court said it is going to hear Donald Trump’s immunity case.
The reaction was telling in all sorts of ways. It showed, as I noted the other day, how conspiratorial-minded prominent left-wing commentators are and demonstrated how vested many of them are in the hope that Jack Smith’s January 6 case will make it impossible for Trump to win the presidency again.
Perhaps most important, though, the firestorm was more evidence for how woefully misconceived Jack Smith’s prosecution is.
The lamentations and denunciations over the past few days have been remarkable, but we ain’t seen nothing yet — whichever way Smith’s case bounces.
If Trump is convicted in the case and loses the election, Trump and his allies will have a ready-made argument that the election was rigged — a Biden-administration prosecutor rushed the case to trial on a political timetable to get the result, a felony conviction, that all the polling said would hurt Trump’s prospects most.
If there is no trial before the election and Trump wins, the Left will have a ready-made argument that the election was illegitimate — the MAGA court did Trump’s bidding by delaying the proceedings, or ruling in the former president’s favor on some question of law; the public was denied crucial information that would have been provided by a trial; an insurrectionist was allowed to skate when he shouldn’t even have been on the ballot, etc.
Jack Smith, in short, is a delegitimizing machine. His prosecution is a stick of TNT in the middle of an already fraught election.
In their attacks on the Supreme Court in the past several days, left-wing opinion-makers have said how worried they are that, if the January 6 trial doesn’t take place, justice as they see it won’t be done; Trump could win the election again and order an end to the prosecution. But their fear that Trump might not be hobbled by the case as they hoped and expected adds an extra element to the outrage.
“Democrats in my text chains and on social media are equal parts enraged and despondent over the news,” former Obama adviser Dan Pfeiffer wrote in his Substack newsletter of the Supreme Court’s taking up the immunity question.
“Some worried Democrats comforted themselves by believing that Trump’s chances to return to the White House would end with a conviction,” he explained, in what wasn’t exactly breaking news. “No trial before the election means no conviction.”
A fundamental problem with Jack Smith’s case is that it is inherently political, in two senses. One, it involves a political offense — Trump’s conduct after the 2020 election — rather than a strictly legal one. Two, it is happening in a political context, hard up against a national election, with Smith desperate to get to trial before the election and with the supporters of the prosecution depending on it to produce the political outcome they desire.
So, if the criticisms of the Court have been dumb and unworthy, they have been understandable at a certain level. Of course a politicized prosecution is going to be seen through a political lens; the Court’s detractors are just assuming that the conservative majority is viewing the Smith case the same way they are, as a proxy battle over Trump’s campaign.
Pfeiffer thinks the Court’s willingness to hear the case “may be the most blatant Supreme Court intervention in a campaign since Bush v. Gore.”
Smith’s case represents impeachment through different means rather than a traditional prosecution. As we discussed on The McCarthy Report last week, the Smith prosecution is a substitute both for impeachment and for an indictment on insurrection charges. Regarding the former, Smith is desperate to disqualify Trump before the election, the way a conviction in a Senate impeachment trial could have done. Regarding the latter, Smith has brought dubious, legally novel charges in lieu of the insurrection case that wasn’t supported by the facts or the law.
This makes the Smith prosecution a precarious, not to mention a very ill-advised, venture.
It may be that there’s no way that it can make it to trial before November. For his part, Ian Millhiser of Vox is grappling with the fact that there may not be any, as he puts it, “deus ex machina” to keep Trump from the White House.
“Donald Trump will be defeated, if at all, in November at the ballot box,” he writes. “The only thing his opponents can do to make that happen is to vote for Joe Biden, and to encourage others to do the same.
“There is no other solution.”
Yes, the people who profess to treasure democracy the most will perhaps have to win an election fair and square, without Jack Smith putting his thumb on the scale. That alarms them greatly, and if the result goes the wrong way, they will never accept it. They’ve hoped Jack Smith would be a crutch, and if he’s not, he’s going to be an excuse.