Our memo points the way to special counsel
Some people have objected to the need or timing of the appointment of a special counsel in the federal investigations into former President Donald Trump. But we welcome the announcement of veteran federal prosecutor Jack Smith in this role. Whether or not required under the regulations, the appointment was the best way to reduce even the appearance of political influence in the ongoing investigation. Based on completeness indictment note template (“pros memo”) that we co-wrote regarding the Trump documents and the obstruction investigation, we believe this development at the Justice Department will likely lead to criminal charges against the former president. That said, whether Special Advocate Smith indicts or not, justice demands that he act quickly, and we are confident that he will.
Even critics of Garland’s decision should acknowledge that the optics would be less than ideal if he proceeded without a special counsel. Trump just this week officially announced that he will run back to the Oval Office. And President Joe Biden said that his intention is to stand for election. It was therefore a prudent decision and, within the framework DOJ regulationsfor Garland to take this course of action, even though the appointment of a special advocate is typically used when investigating a political figure in the executive branch.
Those rules provide that if there is “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 advocate. For the politician appointed by the president to investigate and possibly prosecute Biden’s main political opponent is, as Garland rightly noted, an “extraordinary circumstance.” And removing any risk of potential taint serves the public interest.
If the facts show that Trump broke the law, we have no doubt that the special counsel will pursue the indictment. Like a veteran former federal prosecutor With over 16 years of experience in the Department of Justice, Smith is well aware of the Department’s policy that suggests prosecution where, among other things, “the person’s conduct constitutes a federal offense” and “admissible evidence will likely be sufficient to obtain and maintain a conviction”.
Our memo supports the conclusion that Trump committed a number of crimes and that the facts will be sufficient to secure and sustain a conviction. Pros’ memo outlines strong case that could be made against Trump in connection with his mishandling of classified and other government documents at Mar-a-Lago, as well as the Archives’ obstruction of the investigation national authorities and the Ministry of Justice. Some of us also participated with care evidence tracking against Trump related to the events of January 6, and the facts, although much more complicated, may well warrant prosecution in this case as well.
Of course, we surely don’t have all the facts. There may or may not be additional exculpatory evidence – or evidence of the inculpatory variety. Either way, Smith’s reputation for prosecuting 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 adviser, said: “I am confident that this appointment will not slow down the completion of these investigations”. Smith also pledged to act expeditiously. It is very necessary.
Almost two years have passed since January 2021, when the pattern of potentially criminal conduct within the jurisdiction of the special counsel peaked. For our memo, we reviewed all previous lawsuits for mishandling classified information in the United States. These precedents show that the DOJ typically initiates prosecutions within one to two years after the offense is committed, and sooner when discovery of the unlawful taking of the documents follows the crime.
As our pro memo template details in its compilation of DOJ precedents, literally any other American who concealed classified documents would likely have been prosecuted by now — and where the former president concealed hundreds, including including some of the country’s most sensitive secrets – the rule of law demands quick action.
Some are understandably skeptical about whether justice will be achieved in a timely manner, or achieved at all, given Trump’s record of evading legal consequences. History elevates this concern. Among the many lawyers appointed as special counsel, dating back to Archibald Cox as a “special prosecutor” tied to Watergate, no indictment against a sitting president or former president has ever been filed. But each of those cases had serious hurdles to prosecution that just don’t seem to be present here.
Some of these cases involved a sitting president, preventing—at least per GM policy-legal pursuits. We know that this policy was the reason for the absence of affirmative findings of criminal conduct in the case of Special Counsel Robert Mueller. report 2019. Muller said so. This hands-off approach to a sitting president has also Explain why Richard Nixon was not prosecuted before his resignation (although, had it not been for President Ford’s pardon, he might well have faced a post-presidential impeachment).
Above all, there just aren’t many precedents for the era we’re in (which is fortunate). And none of the previous cases involved evidence of criminal conduct. after leave office. Whatever constitutional or prudential considerations might militate against pursuing criminal charges against a sitting president for conduct while in office, none apply once that person has returned to life as a citizen. private.
On the contrary, ex-presidents should not be treated differently from other Americans. Being elected president is not lifelong criminal immunity. This protection is something that only applies to monarchies and tyrannical regimes. The rule of law requires that its application apply 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 obey the law for a former president.
The ultimate responsibility for this accountability rests not only with Smith, but also with the Attorney General. Under DOJ regulations, the special advocate will eventually need to inform Garland if he decides to indict Trump. This gives the Attorney General the power to stop the action (triggering Congressional reporting requirements) or allow it to continue.
Just as voters across this country resoundingly pushed back in the 2022 election against candidates attempting to push our nation toward autocracy, we expect Smith to do his duty and secure the promise of equal justice before the law. Analysis of our memo indicates that he recommends charges and that Garland accepts that recommendation. We hope that will come sooner rather than later.