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Merrick Garland announcing special counsel for Trump probes

U.S. Attorney General Merrick Garland delivers remarks alongside Deputy Attorney General Lisa O. Monaco and Assistant Attorney General Kenneth Polite at the U.S. Justice Department on November 18, 2022 in Washington, DC. Garland announced he will appoint a special counsel to oversee the Justice Department’s investigation into former President Donald Trump and his handling of classified documents and actions before the January 6th attack on the U.S. Capitol Building. Garland's pick to oversee the special counsel is Jack Smith, an international criminal court prosecutor. (Photo: Anna Moneymaker/Getty Images)

The Criminal Case Against Trump Is Clear. The Special Counsel Should Now Move Expeditiously

Our expert legal conclusion is that Trump has committed a number of felonies, and that the facts will be sufficient to obtain and sustain a conviction.

Some people have argued against the need for, or timing of, the appointment of a special counsel in the federal investigations of former president Donald Trump. But we welcome the announcement of veteran federal prosecutor Jack Smith in that role. Whether or not it was necessary under the regulations, the appointment was the best means to reduce even the appearance of political influence in the ongoing investigation. Based upon the exhaustive model prosecution memo (“pros memo”) we co-authored concerning the Trump documents and obstruction investigation, we believe this development at the Justice Department will likely lead to criminal charges against the former president. That said, whether Special Counsel Smith indicts or not, justice demands he move expeditiously, and we are confident he will.

Even critics of Garland’s decision should recognize that the optics would be less than ideal if he proceeded without a special counsel. Trump just this week formally announced that he will be running to return to the Oval Office. And President Joe Biden has said that his intention is to run for reelection. It was therefore a prudent decision, and within the DOJ’s regulations, for Garland to take this course of action, even if a special counsel appointment is typically used when investigating a political figure within the executive branch.

Those rules provide that if there is either “a conflict of interest for the Department or other extraordinary circumstances” and “it would be in the public interest,” the Attorney General will appoint a special counsel. For the political appointee of the president to investigate and perhaps prosecute Biden’s leading political opponent is, as Garland rightly noted, an “extraordinary circumstance.” And removing any risk of potential taint serves the public interest.

If the facts demonstrate Trump violated the law, we have no doubt that the Special Counsel will pursue indictment. As a veteran former federal prosecutor with more than 16 years of experience at the Department of Justice, Smith is well aware of the Department’s policy that suggests prosecution when, among other things, “the person’s conduct constitutes a federal offense,” and “the admissible evidence will probably be sufficient to obtain and sustain a conviction.”

Our pros memo supports the conclusion that Trump has committed a number of felonies, and that the facts will be sufficient to obtain and sustain a conviction. The pros memo outlines the strong case that could be brought against Trump in connection with his mishandling of classified and other government documents at Mar-a-Lago, as well as obstruction of the investigation by the National Archives and the Justice Department. Some of us have also been involved in carefully tracking the evidence against Trump related to the events of January 6, and the facts, while far more complicated, may well support prosecution in that case as well.

Of course, we surely do not have all the facts. There may or may not be additional exculpatory evidence out there—or proof of the inculpatory variety. In either event, Smith’s reputation for prosecutorial tenacity suggests he will fill those gaps.

An important question, however, is how long it will take to do so. Garland, in his statement appointing the Special Counsel, said, “I am confident that this appointment will not slow the completion of these investigations.” Smith also committed to acting with dispatch. It is badly needed.

Nearly two years have elapsed since January 2021, when the potentially criminal pattern of conduct under the Special Counsel’s purview culminated. For our pros memo, we reviewed every prior prosecution for mishandling classified information in the United States. Those precedents show that the DOJ usually brings charges within one to two years after the offense was committed, and sooner when discovery of the unlawful taking of the documents follows on the heels of the crime.

As our model pros memo details in its compilation of prior DOJ precedent, literally any other American who had concealed classified documents would likely have already been subject to prosecution—and where the former president concealed hundreds including some of the nation’s most sensitive secrets—the rule of law demands expeditious action.

Some are understandably skeptical whether justice will be timely obtained, or obtained at all, given Trump’s record of evading legal consequences. History elevates that concern. Of the many lawyers appointed as special counsel, dating back to Archibald Cox as “special prosecutor” related to Watergate, no indictment against a sitting or former president has ever been filed. But each of those cases had serious impediments to prosecution that simply do not appear to be present here.

Some of those cases involved a sitting president, preventing—at least according to DOJ policy—criminal prosecution. We know this policy motivated the lack of affirmative conclusions of criminal conduct in Special Counsel Robert Mueller’s 2019 report. Mueller said so. That hands-off approach to a sitting president also explains why Richard Nixon was not prosecuted prior to his resignation (though, but for President Ford’s pardon, he may well have been subject to a post-presidential indictment).

Importantly, there is simply not that much precedent for the times we are in (which is a fortunate thing). And none of the previous cases involved evidence of criminal conduct after leaving office. Whatever constitutional or prudential considerations might militate against pursuing criminal charges against a sitting president for conduct during their tenure, none apply once that person has returned to life as a private citizen.

On the contrary, ex-presidents should not be treated any differently than other Americans. Being elected president is not a lifelong grant of criminal immunity. That protection is something that applies only in monarchies and tyrannical regimes. The rule of law requires that its operation applies to each of us equally. Indeed, having been the leader of the free world, and the head of our law enforcement and intelligence communities, should mean a greater, not lesser, obligation to adhere to the law by a former president.

The ultimate responsibility for that accountability lies not only with Smith but also with the Attorney General. Under DOJ regulations, the Special Counsel will ultimately need to notify Garland if he determines to charge Trump. That gives the Attorney General the authority to stop the action (triggering reporting requirements to Congress) or to allow it to proceed.

Just as the voters of this country resoundingly pushed back in the 2022 election against candidates attempting to nudge our nation toward autocracy, we expect Smith will do his duty, and ensure the promise of equal justice under law. The analysis in our pros memo points to his recommending charges and Garland accepting that recommendation. We hope that will come sooner rather than later.

© 2021 Just Security
Norman Eisen

Norman Eisen

Norman Eisen is chairman and co-founder of Citizens for Responsibility and Ethics in Washington (CREW) and a visiting fellow at the Brookings Institution. He served as chief ethics lawyer for President Obama and later as U.S. ambassador to the Czech Republic.

Ryan Goodman

Ryan Goodman is the Anne and Joel Ehrenkranz professor of law at New York University school of law, specialising in international human rights. Follow him on Twitter @rgoodlaw


E. Danya Perry

Danya Perry (@Edanyaperry) is Founding Partner at Perry Guha LLP. She is former Deputy Chief of the Criminal Division for the Southern District of New York, and former Deputy Attorney General for the State of New York and Chief of Investigations for the Moreland Commission to Investigate Public Corruption.

Joshua Stanton

Joshua Stanton

Joshua Stanton (@StantonLaw) is Of Counsel at Perry Guha LLP. He previously served as a public defender in Memphis, Tennessee.

Siven Watt

Siven Watt

Siven Watt (@SivenWatt) is a Legal Fellow at Just Security.

Andrew Weissmann

Andrew Weissmann

Andrew Weissmann (@AWeissmann_) is Professor of Practice and Distinguished Senior Fellow at the Reiss Center on Law and Security and at the Center on the Administration of Criminal Law at NYU School of Law. He served as a lead prosecutor in Robert S. Mueller’s Special Counsel’s Office (2017-19), as Chief of the Fraud Section in the Department of Justice (2015-2019), and as General Counsel for the Federal Bureau of Investigation (2011-2013).

Fred Wertheimer

Fred Wertheimer

Fred Wertheimer is the founder and president of Democracy 21, a nonprofit, nonpartisan organization that seeks to promote government accountability and integrity.

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