Friday Round Up! 7/14/2023

Trump plans to run out the clock. And there's a get out of jail free card waiting for him if he gets elected that no one is talking about.

I’m back from vacation! I had a great couple of weeks in the U.K. and Ireland, where I felt blissfully far away from the Trump crazy train. Of course, that didn’t stop that train from still running. Last Monday, Trump’s lawyers filed a response to the government’s request to set a December trial date, arguing that any trial should be delayed until after the election. Among the reasons cited by Trump’s legal team are that preparing the defense will take a long time, given the volume of documents (over 800,000 pages) and “novel legal issues” involved. Standard defense argument. But Trump’s lawyers also argued that their client’s prospective candidacy for the presidential election will take “tremendous time and energy” that will interfere with their ability to prepare an adequate defense. What?

Renato and I discussed the merits of these arguments and how they will fare in this week’s podcast:

I want to quickly elaborate on a point I make in the podcast of the ramifications of delaying the trial until after the election. It’s of course easy to imagine, if Trump gets elected (sorry but it’s a possibility folks), all the ways that Trump could exercise the presidential levers of power to stop the cases against him — especially having learned from his “mistakes” the first time around. He could fire Special Counsel Jack Smith, or appoint another lackey as attorney general, and make him dismiss the charges. He could even try to pardon himself. All of these would thrust us into (yet another) constitutional crisis.

But Trump could also benefit from an existing policy, which would not require him to do anything at all. I’m referring here to the current Justice Department policy against indicting a sitting president, a much-discussed subject during Special Counsel Robert Mueller’s investigation of Russian election interference. To wit, on page 1 of Volume 2 of his report, Mueller declined to conclude whether or not Trump should be charged for obstruction of justice because of an opinion from the Office of Legal Counsel in 2000 which concluded that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” Mueller’s position was that it would be unfair to Trump to accuse him of a crime in the final report if the Justice Department was not going to indict him since Trump would not have the opportunity to defend himself or clear his name in a neutral forum, leaving a cloud of suspicion hanging over him. (Mueller also cites the same memo in footnote 4, to point out that any charges or prosecution would not be precluded once Trump was no longer in office.)

The discussion during the Mueller investigation centered on whether or not he could or should be charged. But it’s important to note that the reasoning behind the OLC opinion applies to both indictment and criminal prosecution. In fact, the primary concern about distracting a sitting president from his duties stems from the time and energy he would have to devote to defend himself at trial. Although he has been indicted as an ordinary “civilian,” if Trump were to be elected, this memo would once again become the central guidance for the Justice Department. That would mean that Trump wouldn’t even have to engage in any corrupt presidential shenanigans to get off the hook: His attorney general could just say, “Hey look, we have a 24 year-old internal policy against prosecuting a sitting president. And as former Special Counsel Mueller stated himself, it would be unfair to leave this accusation hanging over his head without giving him an opportunity to vindicate himself. We’re going to rescind the approval given to the Special Counsel to continue these cases.” And if the attorney general didn’t say that, Trump’s supporters could (somewhat legitimately) argue that the Justice Department was violating its own policy and treating Trump differently and unfairly.

To be clear, the OLC memo is based on policy considerations, not legal ones. That is, the Justice Department has never taken the position that there is a constitutional bar against charging or trying a sitting president (and in fact Special Prosecutor Leon Jaworski argued to the Supreme Court that President Nixon could and should be named as an unindicted coconspirator even if he was never charged or tried). But as it stands right now, the Justice Department’s own policy offers Trump the strongest get-out-jail-free card if he becomes president, and one that provides him with complete legal cover and justification. Attorney General Merrick Garland does have the power to rescind or revise this position, though, and he should: Making it clear that there is neither a legal or policy bar to allowing the Justice Department to continue its prosecution(s) even if Trump is elected will take the easiest escape route for him off the table. Trump may (and likely will) try to achieve the same result by other means — but at least then he’ll have to engage in more overtly corrupt tactics to do it, which at least leaves him possibly open to political, and perhaps even legal, consequences.

I called it here first, folks. Let’s see what Garland does.

My pieces this week:

• This analysis for CAFE Insider on how colleges may interpret the Supreme Court’s affirmative action decision

• In light of my analysis above, this short video and explainer about the history and evolution of the scope and power of the Special Counsel

Other articles worth reading:

• This good historical background and explainer from Lawfare on the Justice Department’s position on indicting and prosecuting a sitting president, a question it has addressed six times since 1973

Upcoming events:

• NEW: Guest Speaker Beverly Gage, Pulitzer Prize-winning author of G-Man: J. Edgar Hoover and the Making of the American Century, Wednesday, July 26, 3 p.m. EDT. Zoom link will be sent to paid members at noon.

• NEW: Zoom Office Hours, Wednesday, August 2 at 4 p.m. EDT. Zoom link will be sent to paid members at 1 p.m.

• NEW: August Wine & Fries Happy Hour with Michael Cohen (yes that Michael Cohen!), date/time TBA — I promise this will be a fun and hilarious conversation you won’t want to miss!

That’s it for now — we’ll get back to class next week!

Hanging out in a London pub with my friend’s dog, Chili