Category Archives: Department of Justice

What’s Good for the Donald Is Good for the Hunter

AP reports on Hunter Biden’s motion to dismiss the special counsel’s case against him, based on Judge Cannon’s dismissal of the classified documents case against Trump:

President Joe Biden’s son, Hunter, asked federal judges on Thursday to dismiss tax and gun cases against him, citing a ruling in Florida this week that threw out a separate prosecution of former President Donald Trump.

The requests in federal court in Delaware and California underscore the potential ramifications of U.S. District Judge Aileen Cannon’s dismissal Monday of the classified documents case against Trump and the possibility that it could unsettle the legal landscape surrounding Justice Department special counsels.

Both Hunter Biden and Trump were prosecuted by special counsels appointed by Attorney General Merrick Garland. In dismissing the Trump case, Cannon ruled that the appointment of the special counsel who prosecuted Trump, Jack Smith, violated the Constitution because he was appointed directly to the position by Garland instead of being nominated by the president and confirmed by the Senate.

Update: Hunter Biden’s motions to dismiss the Delaware and California cases against him may be found here and here. There is a difference between the special counsels in the Trump and Hunter Biden cases. As the Hill notes, “unlike [Jack] Smith, who came from outside the Justice Department to investigate Trump, [Hunter Biden prosecutor David] Weiss was confirmed by the Senate to his position as U.S. attorney for Delaware.” Accordingly, there’s an argument that his appointment was permissible under 28 U.S.C. § 510, which allows the Attorney General to “make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” So maybe not so good for Hunter, although he argues that the Attorney General didn’t just delegate authority to Weiss but appointed him to a new position.

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Breaking: Judge Cannon Says Appointment of Special Counsel Was Unconstitutional, Dismisses Trump Documents Case

NYT reports:

In a stunning ruling, the judge, Aileen M. Cannon, found that because Mr. Smith had not been named to the post of special counsel by the president or confirmed by the Senate, his appointment was in violation of the appointments clause of the Constitution.

The ruling by Judge Cannon, who was put on the bench by Mr. Trump, flew in the face of previous court decisions reaching back to the Watergate era that upheld the legality of the ways in which independent prosecutors have been named. And in a single swoop, it removed a major legal threat against Mr. Trump on the first day of the Republican National Convention, where he is set to formally become the party’s nominee for president.

You can find the order here. Judge Cannon relies in part on Justice Thomas’s concurring opinion in Trump v. United States.

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“Special Counsel Is Said to Be Planning to Pursue Trump Cases Past the Election”

NYT:

The special counsel Jack Smith plans to pursue his two criminal cases against former President Donald J. Trump through the election and even up until Inauguration Day if Mr. Trump wins the presidential race, according to a person familiar with Mr. Smith’s thinking.

Mr. Smith believes that under Justice Department regulations, his mandate as special counsel and his authority to keep the cases going do not depend on a change of administration and extend until he is formally removed from his post, the person said.

As a practical matter, that means that the special counsel’s office is prepared to push forward for as long as possible on the two indictments it has filed against Mr. Trump. One of those, brought in Washington, has accused the former president of plotting to subvert the 2020 election. The other, filed in Florida, has charged Mr. Trump with holding on to a trove of highly sensitive classified documents after he left office and then obstructing the government’s repeated efforts to retrieve them.

Mr. Smith’s decision to keep the cases going, reported earlier by The Washington Post, comes as a landmark Supreme Court ruling on executive immunity this week has effectively postponed the election interference case until after voters go to the polls in November.

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Update on the DOJ’s Election Threats Task Force

States Newsroom with a states’-eye view on the federal efforts.  Despite 17 charges to date, and hefty sentences in some of those cases, the wheels of justice necessarily turn slowly.  And election officials are also not thrilled about the sea of “lawful-but-awful” complaints that don’t rise to the level of a threat subject to federal prosecution.

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“How Trump and His Allies Plan to Wield Power in 2025”

NYT:

Former President Donald J. Trump declared in the first rally of his 2024 presidential campaign: “I am your retribution.” He later vowed to use the Justice Department to go after his political adversaries, starting with President Biden and his family.

Beneath these public threats is a series of plans by Mr. Trump and his allies that would upend core elements of American governance, democracy, foreign policy and the rule of law if he regained the White House.

Some of these themes trace back to the final period of Mr. Trump’s term in office. By that stage, his key advisers had learned how to more effectively wield power and Mr. Trump had fired officials who resisted some of his impulses and replaced them with loyalists. Then he lost the 2020 election and was cast out of power.

Since leaving office, Mr. Trump’s advisers and allies at a network of well-funded groups have advanced policies, created lists of potential personnel and started shaping new legal scaffolding — laying the groundwork for a second Trump presidency they hope will commence on Jan. 20, 2025….

If he wins another term, Mr. Trump has said he would use the Justice Department to have his adversaries investigated and charged with crimes, including saying in June that he would appoint “a real special prosecutor to go after” President Biden and his family. He later declared in an interview with Univision that he could, if someone challenged him politically, have that person indicted.

Allies of Mr. Trump have also been developing an intellectual blueprint to cast aside the post-Watergate norm of Justice Department investigatory independence from White House political direction.

Foreshadowing such a move, Mr. Trump had already violated norms in his 2016 campaign by promising to “lock up” his opponent, Hillary Clinton, over her use of a private email server. While president, he repeatedly told aides he wanted the Justice Department to indict his political enemies, including officials he had fired such as James B. Comey, the former F.B.I. director. The Justice Department opened various such investigations but did not bring charges — infuriating Mr. Trump and leading to a split in 2020 with his attorney general, William P. Barr.

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“Echoes of Jan. 6 committee as Jack Smith foreshadows plan to tie Trump to Capitol riot”

Politico:

When Donald Trump faces a jury on charges stemming from his bid to subvert the 2020 election, he wants to prohibit federal prosecutors from even mentioning the chaos and violence unleashed by his supporters at the Capitol on Jan. 6, 2021. But to special counsel Jack Smith, Trump’s role in the riot is the heart of the case.

new court filing from Smith’s team this week reveals that the mob that stormed Congress in Trump’s name will be the centerpiece of his trial, scheduled to begin on March 4. It wasn’t just an unfortunate reaction to Trump’s incendiary remarks that day, prosecutors contend. It was a tool that Trump used to launch one last desperate bid to cling to power.

Trump’s criminal conspiracies “culminated and converged” on Jan. 6, when he attempted to prevent Congress from finalizing Joe Biden’s victory, argued senior assistant special counsel Molly Gaston.

“One of the ways that the defendant did so … was to direct an angry crowd of his supporters to the Capitol and to continue to stoke their anger while they were rioting,” Gaston wrote in the filing.

In a way, Smith is now casting Trump’s trial as a long-awaited collision between two distinct narratives: Trump’s monthslong campaign to use lies about election fraud to pressure state and federal election officials to keep him in power; and the rioters who embraced Trump’s false claims and took violent action on his behalf on Jan. 6. Those investigations have largely moved along separate tracks in the Washington courts, where a revolving door of Jan. 6 riot defendants have faced punishment while Smith’s grand jury, just a few paces down the hall, worked secretly on the Trump probe.

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“Terrifying Reports About Trump’s Plans for a Second Term Have One Bright Spot”

I have written this piece for Slate. it begins:


On Sunday, the Washington Post reported on Donald Trump’s plans to turn the Department of Justice into a department of “revenge” targeting perceived adversaries if he retakes the White House in next year’s election, as well as a proposal to invoke the Insurrection Act against any protesting citizenry. Given recent polls showing Trump practically sweeping the key swing states in a hypothetical reelection matchup with President Joe Biden, the Post reporting reads as an ominous premonition.

The Post report builds on last week’s chilling reporting in the New York Times about the lawyers who would work for a second Trump administration. All of this portends a new threat against the U.S. legal system. Trump’s potential revenge crew includes lawyers such as Jeffrey Clark, the U.S. Department of Justice official during Trump’s first term who wanted to help Trump overturn his 2020 election loss by getting DOJ to falsely claim there was election fraud in Georgia and who is now under indictment for racketeering along with Trump and 16 others in that same state. The Times reported, however, that Trump World has soured on right-wing Federalist Society lawyers for being “squishes” who showed insufficient fealty to Trump’s personal interests the last time around. The reporting indicated that there would be no place for these non-loyalists next time.

This apparent rejection of FedSoc lawyers is a silver lining that is easy to miss amid justified concern about the rule of the law in January 2025. It gives me a bit more confidence that the legal system could remain steadfast against the most significant forms of illegality by a second Trump administration….

How might that line be held? First, Trump may have trouble confirming some of his nominees for positions including the attorney general, by a United States Senate that is quite conservative but not nearly as Trumpy as the House of Representatives. For those lawyers who get confirmed or don’t need confirmation, it is not clear that they will do so well in the courts. When you rule out elite lawyers and bring in those with less experience and sophistication to play in the big-league federal courts, they often strike out.

While Trump’s lawyers would be sure to find some sympathetic loyalist judges in the lower courts, so far the Supreme Court has not shown itself willing to do Trump’s bidding in a wide variety of cases. Just as the very conservative Supreme Court has found that the United States Court of Appeals for the 5th Circuit sometimes goes too far to the Trumpy right, there’s likely to be plenty of resistance from the right, and not just the left, for Trump’s new attempts to run roughshod over the rule of law….

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“Trump and allies plot revenge, Justice Department control in a second term”

WaPo:

Donald Trump and his allies have begun mapping out specific plans for using the federal government to punish critics and opponents should he win a second term, with the former president naming individuals he wants to investigate or prosecute and his associates drafting plans to potentially invoke the Insurrection Act on his first day in office to allow him to deploy the military against civil demonstrations.

In private, Trump has told advisers and friends in recent months that he wants the Justice Department to investigate onetime officials and allies who have become critical of his time in office, including his former chief of staff, John F. Kelly, and former attorney general William P. Barr, as well as his ex-attorney Ty Cobb and former Joint Chiefs of Staff chairman Gen. Mark A. Milley, according to people who have talked to him, who, like others, spoke on the condition of anonymityto describe private conversations.Trump has also talked of prosecuting officials at the FBI and Justice Department, a person familiar with the matter said.

In public, Trump has vowed to appoint a special prosecutor to “go after” President Biden and his family. The former president has frequently made corruption accusations against them that are not supported by available evidence.

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Jack Goldsmith: “The Prosecution of Trump May Have Terrible Consequences”

Must-read NYT oped:

It may be satisfying now to see the special counsel Jack Smith indict Donald Trump for his reprehensible and possibly criminal actions in connection with the 2020 presidential election. But the prosecution, which might be justified, reflects a tragic choice that will compound the harms to the nation from Mr. Trump’s many transgressions.

Mr. Smith’s indictment outlines a factually compelling but far from legally airtight case against Mr. Trump. The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, his freedom of speech and the contours of presidential power. If the prosecution fails (especially if the trial concludes after a general election that Mr. Trump loses), it will be a historic disaster.

But even if the prosecution succeeds in convicting Mr. Trump, before or after the election, the costs to the legal and political systems will be large.

There is no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party’s probable nominee.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.

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“The 2024 Election Could Be the End of the Cases Against Donald Trump”

Paul Rosenzweig in The Atlantic: “[The 2024 election will] be a referendum on whether Trump will ever be held legally accountable for his actions. Trump faces multiple civil suits and at least two criminal indictments (with two more seemingly just over the horizon). If Trump were to win reelection, it is almost certain that none of these will ever be resolved—at least not in a way that is adverse to his interests, which any reasonable system would admit as a possibility. Such is the power of the presidency.”

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“Trump Lawyers Meet With Special Counsel’s Team as Jan. 6 Indictment Looms”

WSJ:

Donald Trump’s lawyers met Thursday with special counsel Jack Smith’s team, people familiar with the matter said, as federal prosecutors move closer toward bringing an indictment against the former president over efforts to cling to power after his 2020 election loss.

It couldn’t immediately be determined what they were discussing, but defense lawyers often use such meetings to make last-ditch arguments against charging a client. Prosecutors recently told Trump’s legal team he is a target of Smith’s far-ranging investigation into attempts by Trump and his allies to undermine the 2020 election, the clearest sign yet that an indictment may be looming. Thursday’s meeting was another indication that the probe is moving into a critical phase.

More coverage from AP, NYT, and WaPo.

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