Donald Trump

Trump’s biggest courtroom nemesis is looking for an exit strategy

Author: Josh Gerstein and Kyle Cheney Source: Politico

November 7, 2024 at 12:55

Special counsel Jack Smith could proactively withdraw the charges himself, or simply resign and allow the current leaders of the Justice Department to shutter them. | J. Scott Applewhite/AP

The special counsel is expected to wind down the federal criminal cases he has spent the past two years building.

Seventy-five days. That’s how long special counsel Jack Smith has to figure out how to unwind his unprecedented efforts to put former and future President Donald Trump in prison.

Smith’s two cases against Trump — one for conspiring to overturn the 2020 election; the other for hoarding classified documents and obstructing justice — were doomed the moment the 2024 race was called. That’s because longstanding Justice Department policy forbids prosecuting a sitting president, and even if it didn’t, there was never any doubt that Trump’s attorney general would drop the charges.Trump, for his part, has promised to fire Smith “within two seconds” of taking office.

So the secretive prosecutor, who has been building both cases since November 2022, must now decide what kind of exit to make.

Smith and his team did not immediately telegraph any final moves on Wednesday, though Justice Department officials began signaling that they are eyeing how best to shut down the cases. Smith’s options are limited and largely at the discretion of Attorney General Merrick Garland. His hard deadline: Jan. 20, 2025, when Trump takes the oath of office.

Legal experts see a few options for the special counsel. Most involve ending with a whimper, rather than a bang.

Smith could proactively withdraw the charges himself, or simply resign and allow the current leaders of the Justice Department to shutter them. He could continue to pursue the cases for the next two and a half months and essentially force Trump, or his appointees, to pull the plug. Or, with Garland’s blessing, he could release a comprehensive final report detailing the evidence against Trump — evidence that he never got to show juries because both cases never came close to reaching trial.

Smith also has more deeply personal concerns to consider. Trump, who has vowed to use the presidency to seek retribution against his adversaries, has repeatedly accused Smith, without any basis, of criminality. Last month, Trump said Smith should be “thrown out of the country.” And on Wednesday, Trump’s allies signaled quickly that Smith should prepare to face consequences.

“Dear Jack Smith: Lawyer up,” said Mike Davis, a bomb-throwing Trump ally considered to be in the mix to be a top legal adviser in the incoming administration.

Here’s a look at Smith’s potential exit strategies:

Padding the public record

Special counsels typically release reports at the end of their tenures, and Smith could turn his attention to providing the public with a detailed account of his two investigations.

“I am inclined to presume that Jack Smith is a smart enough guy to see the writing on the wall — and that he will not aggressively pursue advancing the cases … but may look for ways to complete the public record,” said Robert Kelner, a veteran defense attorney who represented former national security adviser Michael Flynn during a previous special counsel probe. “That seems to me the wisest approach for him given the virtual certainty that the Department of Justice will dismiss him and the cases he indicted after the inauguration.”

It’s unclear whether Garland would bless this approach. Spokespeople for Smith and the Justice Department declined to comment.

Other hurdles include the need for an interagency process to review a potential Smith report for any classified information — something that could drag out because of the variety and sensitivity of classified documents Trump kept at Mar-a-Lago after his first term. (The classified documents case was dismissed by Judge Aileen Cannon in July, but Smith’s request to reinstate it has been pending at an appeals court.)

It’s also unclear how much evidence remains unseen by the public, particularly after Smith unloaded a batch during an October fight over presidential immunity in the election case. However, special counsel reports have become crucial historical documents in recent years that tend to be more comprehensive than court filings.

Some experts are torn over the value of such a report after numerous disclosures in Congress and in court about Trump’s allegedly criminal actions apparently did not tarnish his appeal to voters — and may have actually burnished it.

“Historians would certainly profit from a detailed report, and many already convinced that Trump did indeed commit criminal offenses would find yet more evidence of that point,” said Columbia University law professor Daniel Richman, a former senior adviser to the FBI. “But a great many Americans with a rough sense of those offenses just made clear that they are untroubled by them, and I don’t imagine that a comprehensive report would change their mind. So while there might be some last value in a report and the self-conscious tribute to the rule of law that it would entail, the tribute could as easily be read as a celebration of impunity.”

Running out the clock or winding down early

Smith — with Garland’s blessing — could also keep his foot on the gas in the courts for as long as he can.

Some Trump critics say the best course of action is to do just that and make Trump fulfill his promise to fire the special counsel.

“I think Smith should keep going,” said former Obama White House ethics lawyer Norm Eisen. “Obviously, the terminus of that will come on Jan. 20th when the very first thing that Trump does is fire Jack Smith. … He should consider whether he can proceed with the cases [and] require Trump to begin his administration with an outrageous act of self-help.”

If Smith maintained the prosecutions until the last possible moment, he could ask U.S. District Judge Tanya Chutkan to move forward with a potential hearing in December or January on Trump’s claim to be immune from the charges related to his effort to subvert the 2020 election. That hearing would be one final chance to air evidence and take testimony from key witnesses to the alleged scheme.

But that approach is unlikely, since prosecutors and Justice Department leaders know the cases are destined to unravel imminently, and Trump’s team would fight any efforts to impose new legal obligations on the president-elect during the transition. Smith already passed on seeking a public hearing just weeks ago even as many liberal lawyers publicly clamored for him to do so.

Justice Department officials indicated Wednesday that they don’t expect any kind of brinksmanship from Smith and that he and Garland will abide by the DOJ policy against prosecuting a sitting president. Smith is likely to leave the department before Jan. 20, although precisely when and what he might do in the interim remains unresolved, according to the officials, who were granted anonymity because they were not authorized to speak publicly.

Critics of the Trump prosecutions, like former Attorney General Bill Barr, say Smith would be wise to quickly close up shop.

“It’s really a question of how … the federal government, the Justice Department is going to dismount from the limb it’s gotten itself out on,” Barr said Wednesday on Fox News. “At the end of the day, the juice is not worth the squeeze as far as the public interest is concerned.”

One wild card: Chutkan herself. Though the Justice Department has the authority to drop criminal charges, prosecutors must formally get a judge’s permission to do so. In the election case, Chutkan could ask questions that force prosecutors to defend the decision.

Lawyering up

Trump has routinely described Smith’s efforts as criminal and suggested he should face punishment.

How acute Smith believes that threat to be may guide his actions over the next two months as well.

“Sad to say, Smith and his associates might indeed be right to be concerned about Trump retribution, which is less likely to amount to actual charges or proceedings than to the simple infliction of financial costs and the disruption of everyday life,” Richman said. “What remains to be seen is whether line DOJ prosecutors will accommodate Trump’s vendettas. All too many of them seemed ready to do so last time around.”

Eisen predicts political fallout for Trump if he tries to use the Justice Department to exact revenge.

“If Donald Trump embarks on that path, he will be running right into the buzzsaw of the rule of law,” Eisen said. “That will be one of the avenues that is the most undermining to his own standing. So, we’ll see if it happens or not. Obviously, it has to be taken very seriously.”

“Notwithstanding the shocks of this election, this is still the United States of America,” he continued. “The Constitution is still there. The laws are still there.”

Even if Trump forgoes trying to prosecute Smith, the special counsel is all but certain to be hauled before Congress for testimony, particularly with Republicans in control of the Senate and on track to keep control of the House. Many of Smith’s deputies have also faced criticism and scrutiny from congressional Republicans, who might be eager to subpoena them for public scolding at high-profile committee hearings.