This “weekly constitutional” is not based directly on a court judgment, but on another formal legal document, the report submitted by United States special counsel Jack Smith under section 600.8 of the Code of Federal Regulations.
There is, however, a court judgment relevant to this report: the US Supreme Court judgment of July 2024 providing for a general (but limited) immunity from prosecution for presidents, for actions within their authority and for their official acts.
The report itself is about a prosecution that was not completed: the federal case against Donald Trump in respect of his efforts to interfere with the certification of the Electoral College votes on 6th January 2021.
The body of the report ends with this striking and unequivocal statement: “[…] but for Mr Trump’s election and imminent return to the Presidency, the [Special Counsel’s] Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial”.
One way of responding to that emphatic statement is to say: of course that would be the prosecution’s position, else they would not have brought the prosecution. It would have been wrong had the prosecutors not assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.
Such a response has some merit. The report is from a party to contested litigation, and so it should be examined from that perspective. It is not a determination of the facts by an impartial tribunal, it is effectively a statement of the case to be met by the defendant. Nobody can be certain what a court would have decided about the prosecution case.
And it is highly unlikely that we shall ever know. Barring some exceptional situation, such as Trump standing down from the presidency before relevant limitation periods expire, this prosecution has essentially been timed-out. Trump and his lawyers successfully ran the clock down.
Like in the British television gameshow Bullseye where a studio wall was pulled back to show some lost prize, this report is an indication of what Trump’s opponents could have won had the prosecution come to trial and succeeded.
There is no guarantee that the case would have prevailed—and Trump’s lawyers may have been as deft in the courtroom as they were in preventing the case from coming to trial, but the report sets out (literally, in a way) Trump’s worst-case scenario.
So why did the case not come to trial? In part, as indicated above, because Trump’s lawyers were able to delay and obstruct it at every turn. This is not surprising, for that is what defence lawyers can do when they are able to do so.
Another reason is the courts themselves, both in respect of procedural decisions (and indecisions) and in respect of substantive judgments, such as the Supreme Court ruling on immunity. Litigation is not entirely a bilateral process, and the courts can be the cause of delay (as well as of acceleration), regardless of the wishes and interests of the parties.
And part of the blame must be with the prosecution itself. This is not so much about Smith, who from his appointment in November 2022 seems to have done what he could with the case and resources he had. Instead, it is about how late that appointment was in respect of events which occurred in January 2021.
This is what some US commentators are calling “the lost year”. Why did it take the US attorney general Merrick Garland so long to appoint Smith? By the time of the appointment, the clock was already ticking down to the start of the primary season for nominating party candidates, which meant any actions would be concurrent with highly politicising events.
Here, it is no answer to blame the defence lawyers and courts: any meaningful litigation strategy assumes that defence attorneys will do what defence attorneys do, and that judges will do and not do certain things. Litigation is a multi-party process.
Any one-sided litigation strategy, which assumes defence lawyers and courts will always nod-along, is not really a litigation strategy at all. It is the legal equivalent of going outdoors every day dressed in the expectation that it will always be sunny.
But even if the defence lawyers had been less skilled at obstruction and delay, and even if the courts had acted with speed and always ruled in the prosecution’s favour, this was always going to be a hard and complex case to bring.
The evidence against Trump required more than his tweets. It required a trawl through many types of electronic and non-electronic evidence, connecting what he did and did not do away from the Capitol with those at the Capitol who thought they were doing him a favour with their violence and other criminality.
It was never going to be a quick and easy case. And there was a certain air of unreality in the indictment. The president was being prosecuted as a private individual under the general criminal law in respect of highly specific and, in actuality, highly political acts. Indeed, the attempt to remain in power by what many have described as an insurrection is perhaps the most political of all acts, as it is about the raw, brute retention of power.
But Smith and his team had no realistic alternative but to prosecute Trump for offences as bland as “conspiracy to defraud the United States”, “obstruction and conspiracy to obstruct” and “conspiracy against rights”. They did consider charges under the Insurrection Act: “The Office recognized why courts described the attack on the Capitol as an ‘insurrection’, but it was also aware of the litigation risk that would be presented by employing this long-dormant statute.”
The Special Counsel sensibly decided to rely on general criminal law: “The Office had a solid basis for using [the general criminal offences] to address the conduct presented in this case, and it concluded that introducing relatively untested legal theories surrounding [the Insurrection Act] would create unwarranted litigation risk. Importantly, the charges the Office brought fully addressed Mr Trump’s criminal conduct. Importantly, pursuing a charge under [the Insurrection Act] would not have added to or otherwise strengthened the Office’s evidentiary presentation at trial. For all of these reasons, the Office elected not to pursue charges under [the Insurrection Act].”
Indeed, the potential evidential and other legal problems of bringing such a prosecution detailed in the report would have slowed the overall prosecution even further. In summary, Smith and his team appear to have done what they could with the law, the evidence and the time available.
And here we come to what is perhaps the fundamental problem with this prosecution, which may not have been possible in the time available, even without meddlesome defence lawyers and irksome judges. This should never have been a matter for a trial on indictment, but for a trial on impeachment.
The Smith report is a document that chronicles what happens when the US Senate does not fulfil its constitutional obligations, and it is left to a criminal prosecution to fill in the gaps.
What Trump did and did not do on 6th January 2021, while coming within the scope of the general criminal law as shown by the Smith report, was in its nature a highly political act by a sitting president, and the US constitution has the means for dealing with such acts: impeachment.
Trump was impeached by the House of Representatives on 13th January 2021, days after the violence at the Capitol. Republican members of the Senate then came out with various reasons to not convict Trump for his role in respect of the attempted insurrection.
One Republican senator said: “To persist with impeachment now, with just days to go in the current administration, will further divide Americans and exacerbate tensions. Moving forward, it is my sincere hope Congress will work on a bipartisan basis to restore the confidence of the American people in our elections and affirm our shared commitment to the rule of law.”
Another said: “We just need to go forward to help the people of this country and quit worrying about politics.” And so on.
Few Republican senators addressed the actual article of impeachment against Trump. They insisted that there were better reasons for moving on and drawing a line and so forth. The Senate thereby ducked its constitutional duty as the impeachment failed to secure the two-thirds majority it needed to pass, and so Trump was acquitted. Had Trump been convicted on impeachment, criminal proceedings could have still followed, but far less weight would have been placed on them.
That was the point of no return. Yes, Garland appointed Smith too late, and yes, the special counsel appears to have had a perhaps optimistic view of what could be done in the face of defence lawyers and independent judges. But it is also remarkable that his team was able to do as much as they did, and the evidence accumulated in the Smith report will make it a document for the ages. It may be a document of just one party to the litigation, but it is as strong as a prosecution report can be.
The indictment against Trump for his role in 6th January failed because it was never likely to succeed in the circumstances. But it was also the wrong tool for the job. For, as wise Tywin Lannister says in George RR Martin’s A Song of Ice and Fire, there is a tool for every task, and a task for every tool.
A trial on indictment was never the correct tool for this task, even if Trump’s conduct was technically unlawful under US general law. A trial on impeachment would have been the correct tool for properly holding Trump to account for what he did, and when that tool was not properly applied, all else followed.
