Don’t blame Jack Smith for dropping cases against Trump

That’s why it’s disheartening to see some legal and political analysts and academics directing their condemnation at Attorney General Merrick Garland and special counsel Jack Smith. According to these critics, Garland and Smith’s decision to act carefully and methodically in prosecuting Trump, while adhering to precedents set by the Justice Department and the courts, only served to help the former and future president evade justice.

Jonathan Ladd, political scientist and Georgetown University professor Published on BlueSky social media site “This is a good time to note that the Justice Department’s policy of not indicting sitting presidents is nowhere in the Constitution,” he said Monday.

Ladd’s post continued: “If you look for these words you won’t find them.” “Frankly, you won’t find any words that say former presidents are untouchable. “This is all unconstitutional.”

David A. Graham of The Atlantic described Garland as “obsessed with proceduralism.”

But what Ladd and Graham overlook is the fact that the rule of law, which Garland and Smith follow throughout, does not derive solely from constitutional texts. By this logic, same-sex couples would not have the right to marry, and my employer could fire me without recourse because I am black and/or female.

The Justice Department’s policies did not emerge out of thin air. They were based on legal rulings, precedent, history, tradition—things that underpin many of our civil rights protections. Prosecutors should not ignore them when they create obstacles to the outcome they seek.

What we can never afford to abandon in the struggle for democracy are the principles that support it. Especially if doing so wouldn’t work anyway.

Let’s imagine Garland appoints a special prosecutor well before November 2022, when he taps Smith to lead criminal cases against Trump while the work of the House Select Committee on January 6 wraps up. Or consider if Garland decides not to use a special prosecutor at all and moves on, guns blazing, with Trump’s trial in 2021. Would we be in a different place?

Not likely. First, the case for election interference would have been much weaker without the fruits of the time-consuming, painstaking investigative work of both the select committee and federal investigators. Without this recording, would the grand jury have given the green light to such a case? It’s hard to say.

Meanwhile, an even bigger obstacle stood in front of the Ministry of Justice: the Supreme Court.

At first, the justices appeared likely to aid Trump’s effort to run out the clock, citing a lack of urgency in considering Trump’s immunity request. The court certainly dragged its feet: It took almost five months to decide the case, brief, conduct arguments, and issue an opinion. Against this Watergate case It took only three weeks to be accepted, discussed and decided upon.

In the end, the delay was negligible. The real coup for Smith’s case was the immunity ruling written by Chief Justice John Roberts and supported by three Trump appointees, as well as Justices Clarence Thomas and Samuel Alito, that served as Trump’s stay-out-of-jail-free card.

There are others to blame besides the justices in the court majority. There are Senate Republicans who lost their backbone in voting to impeach and acquit after January 6, 2021. There are MPs who cannot take action Giving explicit support to the disqualification clause of the Constitution. And GOP leaders who refuse to join fellow Republicans like former U.S. representatives Liz Cheney and Adam Kinzinger in putting country before party by supporting Vice President Kamala Harris on Trump. And of course, voters who voted to reward Trump for his autocracy rather than exile him.

But accusing prosecutors of following the law while also facing threats of retribution that could — and now likely will — disrupt their careers, if not their lives, is misguided. The anger you may feel at the lack of accountability for Trump’s lawlessness is justified. Just make sure your aim is correct.

Kimberly Atkins Stohr is a columnist for the Globe. She can be reached at [email protected]. follow him @KimberlyEAtkins.