Opinion - Will Trump avoid prison because of prosecutorial blunders?

July was a lucky month for Donald Trump. The shots fired at him at a rally on July 13 were not the only bullets to whiz by his head.

On July 1, the Supreme Court essentially held that he had immunity for much of his conduct surrounding the events of Jan. 6. As Justice Clarence Thomas put it in his concurring opinion in the immunity matter: “In this case, there has been much discussion about ensuring that a President ‘is not above the law.’ But, as the Court explains, the President’s immunity from prosecution for his official acts is the law.”

The immunity decision left Special Prosecutor Jack Smith’s indictment in so many tatters that even the redoubtable District Judge Tanya Chutkan will have difficulty stitching it back together. Smith has just announced he will not seek a mini-trial to unfold the evidence behind his allegations — at least not before the election.

Even the New York bookkeeping case and the Georgia election interference case are in jeopardy as a result of the Supreme Court’s ruling.

In the Georgia matter, the evidence showed that Trump pressured GOP Secretary of State Brad Raffensperger to recalculate the vote count so he would end up winning the state’s 16 electoral votes. But is this an official act for which Trump would have immunity? And do the sins of the flesh of prosecutor Fani Willis put the entire case on the verge of dismissal?

A case that might have had a chance was the Mar-a-Lago classified documents prosecution, as it involved criminal conduct allegedly committed  after Trump left office, so presumably no immunity. But on July 15, Judge Aileen Cannon dismissed the case on the ground that Special Counsel Smith had been improperly appointed — a position contrary to precedent set time and again by every court that has ever confronted the issue.

“The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers,” Cannon wrote in a 93-page order, granting Trump’s motion to dismiss the case.

Smith just appealed the ruling to the 11th Circuit, but was this the way to go? The circuit court may reverse, but with this Supreme Court, who knows? And conspicuously absent in Smith’s appeal was any request that the Circuit Court remove Judge Cannon.

Elie Mystal, writing in The Nation, despaired that “Cannon’s decision to toss the case should dispel any remaining hope that the courts will save us from Donald Trump.”

It needn’t have been that way. And the failure to hold Trump accountable may be the fault of Attorney General Merrick Garland.

Garland was supposed to have been a good judge. Obama even nominated him for the Supreme Court. But the qualities that go into a good appellate judge are not necessarily those that go into a great prosecutor in a politically charged case.

Confronting the Capitol riot of Jan. 6, Garland said he had decided to begin his prosecutions “with the people on the ground and we work our way up.” This would take time — more time than there was to try Trump before the 2024 election.

Trump announced he would seek another term in the White House, so Garland, after waiting a year and a half, appointed Smith to spearhead the inquiry. Garland did not need to name a special counsel. Nor would it help much, since any special counsel would be charged with partisanship anyway, as he reported ultimately to the Justice Department. And, at the end of the day, Biden decided not to run for reelection. A good prosecutor knows how to weigh imponderables.

The Mar-a-Lago classified documents case had been seen as the most legally clear-cut of the four Trump cases, given the breadth of evidence that prosecutors say they had accumulated, including the testimony of close aides and former lawyers. Smith and Garland should have known that if they brought the case in Florida, there was an odds-on chance of drawing Judge Cannon, whose hostility toward the government had been established in legal moves involving the search warrant.

But, they charged ahead anyway. So why on earth did they bring the case in Florida? The crimes alleged in the devastating 38-count indictment could have been filed in Washington, where Trump took the 197 classified documents from the White House; in Florida, where he stored the documents; or possibly in New Jersey, where he discussed one of the documents with unauthorized persons.

Smith complicated the case by adding the indictments of Trump’s factotum Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira, who could have been indicted separately. They could and did argue, with some force, that they were only employees and this case involved a million documents, all of which they would have to read in order to prepare for trial.

Cannon lived up to her pro-Trump reputation. Two of her colleagues had urged her to step aside because of this bias, but she refused.

Cannon took inordinate time deciding every motion Trump made, however absurd, many of which could have been decided from the bench. Most significantly, she had never handled a trial involving classified documents, which forced the case to operate under a federal law that seeks to strike a balance in criminal trials between the interests of the government in national security and the due process rights of the defendant to see the evidence against him.

After Cannon’s dismissal, Garland again made a questionable decision. He decided to appeal to the 11th Circuit. He will probably prevail there, but he may not fare so well in the conservative pro-Trump Supreme Court. Garland could have instead had the U.S. Attorney in either D.C. or Florida refile the case, making the issue about Smith disappear.

The bottom line is that it is not just the Supreme Court that has failed to hold Trump accountable, it is the prosecutors charged with enforcing the rule of law.

Never has Justice Cardozo’s rhetorical question of whether the criminal should “go free because the constable has blundered” been more relevant.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.

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