When Special Counsels Finish Up, They Must Write Reports
A bunch of outlets are reporting that, given Trump’s election, Jack Smith is in discussions about how to wind down the two cases against Trump
“Oh, it’s so easy. It’s so easy,” Trump said when asked by conservative radio host Hugh Hewitt whether he would “pardon yourself” or “fire Jack Smith” if reelected.
“I would fire him within two seconds,” Trump said.
The discussions between Smith and DOJ leadership are expected to last several days.
Justice Department officials are looking at options for how to wind down the two criminal cases while also complying with a 2020 [sic] memo from the department’s Office of Legal Counsel about indictments or prosecutions of sitting presidents.
They’re not mentioning a fairly obvious detail. According to governing regulations, when a Special Counsel finishes his work, he must write a report to the Attorney General.
Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.
So if Smith is totally done, he has to write a report.
These reports that Smith is engaged in these discussions come as Bill Barr and others are yapping their mouths about Smith simply dismissing the cases. By telling the press that Smith is already working on shutting down the cases, Smith pre-empts any effort from Trump to offer another solution — and does so before Trump files his response to the immunity brief on November 21.
In other words, this may be no more than an effort to get one more bite at the apple, to describe what Smith found, which would be particularly important if there are still undisclosed aspects of the case, as I suggested there might be.
Where things get interesting, though, is Trump’s co-conspirators, people like Rudy Giuliani and Steve Bannon. Those guys could be prosecuted, as Roger Stone was after Mueller finished up. Trump would order his Attorney General to dismiss the cases — they’re never going to be prosecuted. But it would impose a political cost right at the beginning of his administration.
Update: NYT’s version of this notes that they are trying to preserve the appeal in the 11th Circuit. Of course Walt Nauta is still on that appeal.
Can Smith be replaced and then the replacement told to write the report?
I assume the goal here is to finish — and release it as the Durham and Hur reports were — before Garland leaves.
I hope he writes a report. A record should be made. I suppose Trump could holler that he didn’t get a chance to defend himself but that was solely his fault.
I can’t see SC Smith going through the motions of indicting other co-conspirators only to have the Trump DOJ dismiss all charges. On second thought, maybe that action should be forced on the Trump DOJ.
BINGO! I have too many relatives who asserted that Trump was going to prevail on appeal in New York, so obviously he wasn’t a REAL convicted felon. Forcing Trump to fire his way to freedom from federal charges in January is exactly what they need to see.
Failing that, I’d settle for Smith disclosing his post-Harris victory plans for Trump’s accomplices, and then pointing out that he didn’t charge them because Trump was saying he was going to pardon the Jan6-ers – and one assumes that would go all the way to the top.
Never obey in advance
If the report is “confidential,” presumably whether the public ever sees it will be a judgement call for Merrick Garland?
AP reported he will wind down, Seattle Times carrying: https://www.seattletimes.com/nation-world/nation/special-counsel-evaluating-how-to-wind-down-two-federal-cases-against-trump-after-presidential-win/
No mention of a closing report in that item.
Separate issues.
Rayne, what is my old but proper ID here. I’ve been doing groundwork but stopped commenting years ago—altho I read regularly. Thank you. [Marcy always answered me carefully on former twitter on PMs before I left. Please thank her and others again for me.]
I have this quick question now for Marcy or anyone else. Can Jack Smith’s final reports be saved from highly classified designation?
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“But it would impose a political cost right at the beginning of his administration.”
There is no political cost that Trump will pay, certainly not with his cult.
There’s no political cost Republicans will make him pay. For now, there’s still the issue of what Democrats and the public might make him pay.
What form might that take? He suffered no consequences from Covid, his crimes, his fraud, his impeachments or anything else he’s done. As someone once said, he could shoot someone on 5th Avenue….
Am I wrong to think that Merrick Garland let America down?
Yes, first time caller, you are wrong. But thanks for the drive-by.
You and I can have different opinions on whether Garland let us down, but it is irrefutable that the political and judicial systems failed America.
So helpful. *eye roll*
What I am looking forward to is whether Garland publishes it, how much is redacted, and then what follows. This will be a validation, perhaps, of Kendzior’s theory of the case against Gorelick and Garland. Then the other element is timeliness.
i just lost my mind and found it again, right away !!
what a relief !! i signed up !! you can too: here’s Jason Leopold’s ‘sign up’ page: give it a poke !
♥ Rayne: it’s “Jason ‘Mr. FOIA’ Leopold” at/via Bloomsbury ♥
https://www.bloomberg.com/account/newsletters/foia-files
No emojis, thank you — they aren’t searchable. Emoticons are fine, though.
screen cap link to the 11-6-2024 Leopold Newsletter: Would you believe Mrs. Rosenberg … ?
https://www.bloomberg.com/news/newsletters/2024-11-01/using-foia-to-lift-the-veil-of-secrecy-on-a-cold-war-secret
last cut/paste to complete Jason’s posted information:
“@jasonleopold.bsky.social
Hi. Over the next 4 yrs my newsletter, FOIA Files, w/play an impt role in informing the public about what’s going on behind the scenes at federal govt agencies. It w/still be a battle obtaining docs but I guarantee you I will. Sign up for a free sub.”
I am delighted to have found this to share. Now to bed with a sweet smile. Like a well-fed baby’s.
I’m struggling a bit to understand “don’t surrender in advance” in this context.
I’d LOVE it if Trump was forced to fire Jack Smith (actually, to force his AG to fire Jack Smith, but you know what I mean). But if the redacted report isn’t sitting in Merritt Garland’s outbox before inauguration day, that would mean Trump’s AG would be the one who decides what gets released, wouldn’t it?
Seems like question begging. The point of Marcy’s post is that, if Smith is going to wind up his work, he should write his reports in time for Merrick Garland to publish them, which he should do promptly. Because all of Biden’s Cabinet will be out on their ears by 12.30 pm on January 20th. See Marcy’s response at 5.21 pm, Nov. 6th.
Please help me find serenity. Is there a single check or balance that “we the people” have to challenge or leverage influence over Trump/Elon Musk?
Absolute power corrupts absolutely. Acceptance that our abuser has come home and his best friend is the most powerful man in the world?
I keep looking for solutions to this power. The military is beholden to the constitution not the president. But Trump influence has already altered the constitution.
How do Jack Smith’s reports matter now? The abuser has moved in with mom. Do we convince mom she’s being abused? Okay and then what? Run to a shelter? Leave our home?
In a matter of minutes, the power that existed in the hands of the people of the world is gone. We gave the abuser the keys to our house.
Yes we can vote, but Musk can over power any voting block by propaganda and money. What is the intrinsic power of truth? .
I can’t sleep and I can’t stop the night mares. (I might be depressed.)
Years ago I found this site after GW Bush became president. Hoping that he had done some kind of wrong that would be discovered and minimize his power over us.
I could feel his alcoholism. His need to have power over something and it scared me. . I found this place. This place always brought me peace. Maybe Bush is drinking? Maybe he lied? Valerie Plame? Scooter Libby? If people would only see the truth we might be saved. That was my hope then. But now?
Today’s post struck me like a gut punch. The report will tell us what happened to us but little more than that. Does the truth set us free from abuse? If we have no power to stop the abuse?
Our mother land just went back to our abuser,
In domestic violence we fight back with a coordinated community response to bring together the laws, the police, the courts, friends and relatives to over power the abuser. Tyranny is back. And we have no checks and balances. Mr Tyranny is best friends with the sherif and the banker. And he is living in my house with all the people I love. Does the truth set us free?
I’m not a lawyer. I come here to learn from all of the wise people here. Is there any method Smith can use to preserve the evidence in these cases in a way that the next administration can’t destroy it? Thank you.
That was the point of this post. The best and perhaps only way to avoid Smith’s evidence from being shredded by an Aileen Cannon as AG is for Smith to write his reports and for Merrick Garland to publish them. See Marcy’s response at 5.21 pm, Nov. 6.
But if he wraps things up, can the case be re-opened later (in 4 years)? Or will we never get justice for the crimes that were committed against 81 million voters?
No. Trump gets away with it, as he has done his whole life. For one thing, assuming he lives and leaves office in the manner the Constitution demands, the relevant statutes of limitation will have run.
And tolling doesn’t play into it? Or could the next DoJ do away with it anyway?
What “tolling?” Only very specific things, usually statutory, can toll the running of a statute of limitations. A change in administration, which has different prosecutorial priorities, is not one of them. That’s one of the reasons Trump’s incessant lawfare — which he routinely and falsely projects onto others — is so insidious.
Marcie, I respect your work immensely but your take on Garland has to be revised. I get the process arguments, I’ve covered courts and know the legal process is convoluted.
But in the end how you judge a person’s work is results. For a prosecutor, did the bad guys get away with crimes? And in this case there is no doubt that they did. And will keep on getting away with crimes going forward. That’s not justice.
Garland knew the timetable, knew the stakes and utterly failed to even get out word of crimes byTrump and almost the entire head group of the Jan. 6 plotters. I’m not even arguing that if he was more aggressive Trump would have lost. It’s obvious his voters (such as my parents and siblings) wouldn’t have cared.
But now it’s very likely that whatever Trump did to incite the coup, and worse, his corruption of national security, will never see the light of day. That will go down in history as a massive failure of justice that Garland is in charge of. I haven’t criticized him much if at all up to now, because who cares what I think, but I think there can be no doubt that he has been a terrible failure.
That constipated and punitive view of Merrick Garland ignores the context within which he was working, which Marcy – with a “y” – has spilled much ink to point out.
Prosecutors charged with bringing down mafia or gangs typically got a little justice by jailing underlings.
Garland got NADA…but at least a couple of election workers and Fani Willis put some points on the board.
I guess you missed those thousand plus convictions and plea deals from Jan. 6thers.
I’d really like to know what magic wand would have cracked iPhones in minutes instead of months.
That’d be the ones sparkle ponies poop out their bums.
OH. THOSE. I have one of those, sans pony. I wish somebody would have asked me for it back in early 2021.
To be honest I think the disparaging commentary on Garland and the DOJ under his leadership is a particularly insidious species of propaganda.
It is justly criticised as spawned by vaunting ignorance and magical thinking. But it is much more pernicious than that.
It is demoralising propaganda, the obvious effects of which are
—to demoralise pro-democracy sections of the public,
— to diminish reasonable and realistic expectations of the struggles which pro-rule of law civil servants face,
—and diminish proper public appreciation of their expertise and judgment.
These sentiments breach, in advance a number of Timothy Snyder’s principles in his 20 lessons viz
1,2,5, 9,10,11, 16,18,19.
It is particularly disgusting such demoralisation propaganda, exists as a type of “concern trolling from within” and is presented as world weary wisdom gleaned from superior insight, when absolutely the opposite is the true case.
Mockery of this idiocy, whether it appears in comments on blogs or in opinion pieces by so-called intellectuals of the left is a justified response—but mockery is IMHO far far too kind to propagators of this rubbish. Because for the most part, these persons not only had the means, opportunity. and intellect to know better, but have wilfully chosen to be sloppy and stupid; and so they have given aid and comfort to the enemies of democracy( the very forces they purport to oppose) while imagining themselves to be superior smartarses.
They are in fact a class of useful idiots aiding and abetting Trumpism, and should be as disgusted with themselves as I am with them.
If the critique burns that much, it’s likely something other than the outside criticism is contributing and some of your contempt is misplaced.
Jack Smith went big game hunting and the result was that the American people didn’t learn the details of what happened and nobody other than useful idiots and a couple militias paid a price.
It’s entirely possible that there was no other way, but the only way we can get to that conclusion is blind trust.
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Your mileage may vary. Blind trust might be the only way you can get there. I wouldn’t assume it’s the only way.
Tired analogies are unhelpful. Jack Smith didn’t go “big game hunting.” He was assigned a prosecution. He did the best he could with the facts and resources he had. Those who read here often are aware of the tasks his team had to perform to get as far as it did, including obstruction from the Supreme Court’s majority, and outlier judges, like Aileen Cannon.
WRT Trump outrunning the statute of limitations while he is president, how about if Vance tries to 25th him as soon as possible? Could the prosecution resume if Trump were no longer president?
A gal can dream…
We could send a letter to Donald Trump, from Empty Wheel, congratulating him on his Presidential Win. And include 20 Macdonald’s gift certificates for Big Macs and 20 for large fries. This might keep Marcy and Rayne off the enemies list and out of solitary, and you know, fix the other problem, signed Not Dexter
I believe Blassingame v. trump, the civil lawsuit) is still alive in federal Court in DC. James Blassingame et al. (a capital police officer) brought a civil suit against trump and others for what happened on January 6, 2021. That civil suit can continue while trump is president, just as President Bill Clinton had to deal with the Paula Jones civil lawsuit during Clinton’s term in office. If Jack Smith’s report goes public, it could give an assist to the Blassingame suit. If I remember correctly, various members of the US House of representatives (Swalwell and Benny Thompson and others) also filed a civil lawsuit against trump et al. for the Jan 6 attack. The lawsuits were combined. Whatever Jack Smith has found in his investigation(s) if published can help Blassingame’s civil case and trump or his AG cannot kill private civil lawsuits.
The problem is much larger than Garland or Smith. The whole justice ecosystem is severely distorted e.g.
1. McConnell going against congressional norms so that he can stack the Supreme court.
2. Not allowing enough time to adequately research SC candidates.
3. Allowing SC judges to stay on despite receiving massive amounts of undeclared gifts over many years with total impunity. No other judge on any other circuit would get away with this. Also I suspect a democratic leaning SC judge would have long resigned or be forced to resign.
4. Some members of the judiciary, prosecutors and Attorney Generals and leaders of various institution are frightened of the criticism and threats of the Republican party and Trump. But sadly I rarely hear Democratic leaders denouncing these threats stridently and repeatedly. Further these people need to be publicly and stridently supported and multiple times. We know that they will in deed be supported eventually by the institutions but the public doesn’t know about it. They need to hear about this repeatedly.
In other words the other side is publicly playing dirty (with the support of the aggrieved public ~30%) whilst we are secretly playing fair and by the old rules in the back rooms and shadows, but not loudly and publicly supporting those that have been wronged
But it goes a lot further. As Marcy has described even the media is afraid of the republican party and Trump. Thus the whole convoluted truth is hidden from most people, unless like us on this blog, the public spends a lot of time reading and researching, for which they do not have the time or inclination. Thus as Marcy has repeatedly demonstrated Trump has not been held adequately accountable. As an aside how has Fox been allowed to call itself “Fox News” , when most of its news is disinformation. Ok I get it “Freedom of Speech” but hey that is not necessarily factual news.
Trump complains loud and clear at every perceived slight and does so numerous times, often in a controversial manner gaining plenty of air time and public exposure.
On the other hand over the past 4 years Biden infrequently spoke or gave his views on issue and when he did it was only once. He has achieved so much, rebuild a battered economy, gained control over inflation, the seeds of which were planted during the pandemic. Created a proper plan for the future of American economy. All this accounts for little in the mind of the public because these success haven’t been touted enough and indeed magnified adequately. In contrast, Trump was in the news almost every single day during his presidency.
I haven’t even mentioned the issues with “Companies are people”.
If Harris will ever contest the Presidency again, she needs to insert herself into the news and comment about every single Republican failure. For instance, every single death from a failure to perform a medically indicated abortion should be brought to the Public attention and repeatedly so. For crying out loud, these are young healthy women!
Every single avoidable infection and septicaemic event needs to be shouted from the rooftops.
Every singly time a mother is left with residual permanent harm, blame Trump, blame McConnel, blame the unelected Supreme Court, blame the Governors and blame Judges. These complications are all unnecessary consequences of what is essentially a frequent event. 15% of otherwise normal pregnancies miscarry. Avoidable harm as a consequence of failure to treat them is no longer justifiable in modern medicine. Lets not allow a normal medical management of a miscarriage, to turn into a miscarriage of justice.
Start complaining loudly.
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OOOH a REPORT! That’ll show him!