Lawfare Gets Its Swan Song

National Review Online

Wednesday, January 15, 2025

 

Attorney General Merrick Garland and Judge Juan Merchan are taking their last opportunities for lawfare before Donald Trump takes office.

 

Early Tuesday morning, Garland released special counsel Jack Smith’s 146-page report on the 2020 election-interference investigation — the so-called January 6 (J6) case.

 

A second report, which pertains to the probe of Trump’s allegedly illegal retention of classified intelligence reports at Mar-a-Lago (and of his alleged obstruction of this investigation), has not been released. That’s because the Justice Department has dropped the case only against Trump, not against the two minor defendants alleged to be his accomplices. The matter is on appeal before the Eleventh Circuit, with the DOJ challenging Judge Aileen Cannon’s ruling that Smith’s special-counsel appointment violated the Constitution. Garland has orchestrated a scenario in which Trump’s incoming DOJ will surely drop the appeal, whereupon congressional Democrats can commence demanding the public release of Smith’s Volume II and hollering “cover-up” when it doesn’t materialize.

 

But that’s tomorrow’s lawfare. Let’s stick with the here and now.

 

There was no need for Smith to issue a final J6 report. The public is inundated with the appalling but unchanged facts of the Capitol riot, which the nation watched on television in real time, before it became the subject of both a congressional impeachment and the intensely covered House January 6 Committee proceedings. Over the next two years, Smith filed two extensive, narrative indictments in the case; litigated it up to the Supreme Court (on the decisive presidential immunity issue); and then, just three weeks before the election, publicly filed a 2,000-page proffer of his evidence.

 

Garland claims that the Justice Department’s regulations mandate that special counsels compose a final report and that, though the regs call for such reports to be “confidential,” attorneys general have customarily made them public. But under Garland, the DOJ has a history of claiming the regs are not enforceable and of picking and choosing which ones to apply. More to the point, this is not a situation — like, for example, the Robert Mueller special-counsel probe of politically concocted Trump-Russia “collusion” claims — in which the relevant government official never faced criminal charges and thus a final report was arguably necessary for the public record. The J6 record was already bursting at the seams.

 

It should not be considered news that Smith believed that the evidence was sufficient to convict Trump. Had Smith not held this belief, it would have been unethical for him to file charges. Moreover, Smith’s assessments must be taken with a grain of salt: He did not get the case to trial precisely because he underestimated the weakness of his position. As the Supreme Court concluded in its July 1 immunity ruling, a criminal prosecution may not be based on formally legitimate presidential acts even if the prosecutor may be correct that those acts are corruptly motivated.

 

The Court’s decision would have made it extraordinarily difficult to prosecute a president based on Smith’s proof of consultations with Justice Department lawyers, state officials, and the vice president. But Smith wrote his final report knowing that his work would not face any more judicial review. As in his October proffer, his report crimps the Court’s ruling and ignores its instructions not to second-guess Trump’s motives. It’s an exercise in trying to shape public opinion because a real prosecution was no longer an option.

 

Smith’s political exercise is of a piece with Judge Juan Merchan’s insistence that Trump be sentenced last week.

 

Manhattan district attorney Alvin Bragg declined to dismiss the absurd case: a business-records misdemeanor, at best, that was time-barred by the statute of limitations, but that the DA inflated into 34 felonies on the theory that Trump falsified his books to conceal his supposed theft of the 2016 election — by his noncompliance with federal campaign laws that Bragg had no authority to enforce and that the Justice Department concluded Trump hadn’t broken. Merchan was thus hell-bent on sentencing Trump — even to an unconditional discharge, meaning no jail, no probation, and no fine — because some kind of sentence, no matter how laughable, was a necessary precondition to formally entering the judgment of conviction. In their spite, New York progressive Democrats needed to brand the president-elect a convicted felon before his assumption of office would have barred further proceedings in the case for the next four years.

 

Again, one needn’t endorse Trump’s infidelity or lies to observe that the spectacle disserves the country. Trump is not above the law, but he’s not below it either, including in Manhattan, where Bragg specializes in non-prosecution of serious crime.

 

Sure, Bragg, Merchan, and their fellow Democrats now get to call Trump a convicted felon (at least until the appeals run their course). And Garland and Smith get to beat their chests about the convictions of Trump they say they are sure they could have won. But throughout the last months of the 2024 campaign, Democrats called Trump a convicted felon, anyway. What did it get them? Come Monday, the country has decided Trump will be called Mr. President.