This prior week, we saw the documents case against Donald Trump go poof. Judge Aileen Cannon decided to indefinitely postpone that trial.
(See also My Judicial Misconduct Complaint Urging Recusal Of Judge Cannon by KeithDB on his request to remove Judge Cannon. And here is how to file your own complaint, per PlinytheWelder.)
Most people believe this means the trial won’t ever take place. Thinking is that if Donald Trump wins in November, he will just order these charges dismissed, and the Justice Department and the courts will obediently comply.
First of all, that’s hokum. There’s nothing invalid about the case, and it should be pursued until there’s a verdict. I have written before, and still maintain, that even if Ex wins in November, he can’t take office before January 2025 and the DOJ should not withdraw from these suits and the courts should not postpone them just because he’s been elected. And even if he takes office, Jack Smith should not leave office just because the President demands it, because that would violate the independence of the Justice Department. Nor should the courts stop the suits. They have an obligation to carry on until there’s a verdict.
So, I don’t buy that. We should make it known right now that we, the people of the United States, won’t accept that either. It’s not right, it’s not just, and it doesn’t follow our laws.
More here under “Public Service Announcement”.
But there’s something more that the Biden Administration should do right now to give this trial an enormous kick in its tender area. The President should order the DOJ and any intelligence agencies that are impacted by this trial to seek declassification of all documents needed to prosecute it.
This will eliminate any CIPA hearings, removing that excuse to delay the trial.
To do that, the intelligence agencies involved will have to take a close look at the documents and determine if they reveal sources and methods that would be damaged by declassification. They should then take steps to protect those sources and methods by moving them, retiring them, and replacing them in such a way that little or no damage is done by declassification.
In that calculation, you have to take into account the enormous impact it would have for Donald Trump to be elected President. He has shown he’s a walking, talking leak. The damage he’s already done is beyond measure (I believe), and the prospect of him returning to the presidency can’t be countenanced. Damage to our intelligence from declassification should be weighed against that.
I think by that measure just about any document the DOJ needs in pursuing the documents case can be declassified.
This, with a little aggressive prodding by the DOJ, could force the case to go to trial before the election. Any other issues that are not being decided in a timely fashion could be appealed with a request for mandamus, so that they move right along.
This proposal, however, does have a downside. I am asking the President to take an action that directly affects a specific trail. I’m generally very supportive of the independence of the Justice Department. So, you might legitimately ask if this would not affect that independence.
I think this particular situation calls for the President to take action. The President has a responsibility to protect the national security. The President cannot very significantly endanger national security by failing to take action to protect it.
This is different from a situation in which the President directs the DOJ to investigate a particular person out of personal pique or has evidence fabricated to influence a trial. Those are wrong, and this proposal should be clearly distinguished from that.
In this case, the President, the DOJ, and the intelligence agencies have the ability to see that all evidence is available for an existing criminal case. That’s clearly different, and does not affect the independence of the Justice Department.
Beyond this, the Administration and Democrats generally should take the political gloves off with regard to this case. Heretofore we’ve wanted to stay away from commenting publicly about it because we didn’t want to say or do anything that might impede the trial.
What trial?
If the trial isn’t going to complete before the election, why hold back? This is a real campaign issue, where everything about it is fair game to use against Donald Trump and Republicans. Especially against those defending him.
Democrats should use this delay politically. We should use Trump’s failure to guard national security interests and specifics about the laws he’s broken to attack him politically. And we should very pointedly say that he’s guilty, because no evidence has been presented at trial showing otherwise. If the issue is going to be settled in the court of public opinion, prosecute him there.
Also, why aren’t members of Congress who participated in the insurrection indicted? Shouldn’t a grand jury be hearing about their participation? Liz Cheney in her book, Oath and Honor, specifically calls out Mike Johnson as one of the ring leaders of the insurrection. What about him? Why isn’t he on trial?
And what about the co-conspirators in these cases? I’ve written here and here about those co-conspirators. I think they should be separately charged. There’s nothing to stop their cases from going forward. Not a single one of them has presidential immunity. And, according to the Trump indictments (I have the Murray and Weissmann book), they are every bit as guilty as Ex.
So, why are Democrats just whining about how it’s possible we’ll lose democracy when THEY COULD BE DOING SOMETHING. MANY SOMETHINGS.
Get busy, bodies!