{"id":250,"date":"2024-11-11T07:30:16","date_gmt":"2024-11-11T07:30:16","guid":{"rendered":"https:\/\/bluelightnews.com\/why-elon-musks-jack-smith-retribution-threat-is-so-worrying\/"},"modified":"2024-11-11T07:30:16","modified_gmt":"2024-11-11T07:30:16","slug":"why-elon-musks-jack-smith-retribution-threat-is-so-worrying","status":"publish","type":"post","link":"https:\/\/bluelightnews.com\/category\/politics\/why-elon-musks-jack-smith-retribution-threat-is-so-worrying\/","title":{"rendered":"Why Elon Musk\u2019s Jack Smith retribution threat is so worrying"},"content":{"rendered":"
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Elon Musk on Friday called for the punishment<\/a> of special counsel Jack Smith in reply to a post on X from Reps. Jim Jordan and Barry Loudermilk calling on Smith to \u201cpreserve all records.\u201d The exchange signals that while Smith may be winding down his cases against the president-elect, the Republicans are just starting to wind up their efforts to seek retribution.<\/p>\n

That the special counsel is preparing to mothball his two prosecutions of now-President-elect Donald Trump is evident from reporting on Smith\u2019s conversations<\/a> with Justice Department leadership, as well as Smith\u2019s motion this week asking the trial judge overseeing the Jan. 6 case to pause the court\u2019s deadlines. That motion was almost immediately granted<\/a> by Judge Tanya Chutkan. In the filing, Smith characterized the circumstances of the case as \u201cunprecedented\u201d and said he intends to file a report with the court by Dec. 2 laying out how he plans to proceed.<\/p>\n

The problem for Smith is a DOJ policy that prohibits the prosecution of a sitting president.<\/p>\n

The problem for Smith is a DOJ policy that prohibits the prosecution of a sitting president.\u00a0That policy is a result of lawyers for presidents Richard Nixon and Bill Clinton successfully arguing to the Justice Department that prosecuting the sitting head of the executive branch would violate the Constitution.\u00a0While other countries can and do<\/a> prosecute their sitting heads of government and while scholars have questioned the binding power of a DOJ memo<\/a> authored by its Office of Legal Counsel, there is a less-than-zero chance that Attorney General Merrick Garland revisits that analysis, given his fear of appearing partisan.<\/p>\n

This leaves Smith \u2014 and the DOJ \u2014 with basically two choices: They can dismiss the cases, or they can pause the cases until Trump is no longer president (again).\u00a0Pausing the cases would be an exercise in futility since Trump will dismiss the cases as soon as he takes office.\u00a0This would include giving up the pending appeal of Judge Aileen Cannon\u2019s dismissal<\/a> of the classified documents case \u2014 a dismissal based on Cannon\u2019s outlier conclusion<\/a> that the very appointment of the special counsel was unconstitutional<\/a>. Dropping an appeal of a poorly reasoned decision that undercuts the use of a special counsel normally would not be palatable to the Justice Department. But this is not a normal time, and a Trump-appointed attorney general will not only drop the appeal but will also likely seek to do away with the use of special counsels altogether.<\/p>\n

Another issue for Smith and the department is whether to try and rush out his report before Smith is fired. And the release of any such report raises the possibility of a conflict between Smith and the ever-cautious Garland. Under the regulations governing the conduct and accountability of special counsels, such a conflict could require Garland to report the disagreement to Congress.<\/p>\n

Questioning the authority of the special counsel is exactly what Trump and his allies have done since the Mueller investigation. The most recent example, reported by The Washington Post<\/a>, is the incoming Trump administration\u2019s plan to have the \u201cnext Justice Department \u2026 look \u2018critically\u2019 at what Smith\u2019s team did over the past couple of years to \u2018make sure nothing like this ever happens again.\u2019\u201d The Trump-led Republican Party has made a cottage industry out of \u201cinvestigating the investigators,\u201d with congressional investigations into the investigation<\/a> of Hillary Clinton<\/a>, Robert Mueller<\/a>\u2019s Russian interference probe, the Georgia election interference case brought by Fani Willis<\/a>, the New York fraud case and the Hunter Biden<\/a> prosecution, as well as, most famously, special counsel John Durham<\/a>\u2019s own investigation.<\/p>\n

Durham embodies the pinnacle of the Republican fetish for investigating investigations<\/a>. He spent four years, much time in private dinners with former Attorney General William Barr and millions of taxpayer dollars to uncover exactly nothing, while also managing to lose two jury trials. But Durham could soon be unseated as reigning champ of the \u201cinvestigate the investigations\u201d game.<\/p>\n

Investigations carried out by Congress, however, can be a double-edged sword for Republicans.<\/p>\n

The joint letter from Jordan\u2019s House Committee on the Judiciary and Loudermilk\u2019s Subcommittee on Oversight demanding Smith\u2019s team preserve all their documents signals the gleeful ramping-up of their investigation<\/a> into the prosecutions. The request itself is modeled after what is called a \u201cpreservation notice\u201d in litigation, which puts the recipient on notice not to destroy any potentially relevant or discoverable documents. Such requests are highly intrusive and usually overbroad \u2014 but directing such a notice to Smith is a meaningless, showboat action. Smith\u2019s team already<\/em> needs to preserve its documents in the normal course of recordkeeping \u2014 not to mention the historical value of these particular records. Prosecutors are not in the habit of shredding their files upon the conclusion of a case.<\/p>\n

The Jordan-Loudermilk inquiries would normally be frustrated, however, by the DOJ\u2019s standard refusal to provide information or testimony about a pending criminal investigation or case. But if Smith dismisses the cases, then that argument is weakened. Moreover, a Trump-appointed attorney general is likely to order full disclosure of any and all information sought, without regard to protecting witnesses or sensitive information. Similarly, if called to testify, Smith and his team will not have the shield of a pending case with which to deflect inquiries.<\/p>\n

Investigations carried out by Congress, however, can be a double-edged sword for Republicans. A probe in this case will involve testimony about and the disclosure of that evidence Jordan and Loudermilk want preserved. Such a proceeding may not be what Trump wants, given that it puts a renewed focus on acts that resulted in dozens of criminal charges against him, both federal and state. NBC News reporter Ken Dilanian raised the specter of a more Nixonian approach when he asked whether Trump might not just order all of the prosecution\u2019s accumulated evidence at the DOJ be destroyed<\/a>. This more commonsense approach to erasing the history of the federal cases against Trump would now run afoul of the congressional notice of preservation.<\/p>\n

Nor are congressional inquiries the only weapon available to Republicans. An attorney general fully committed to doing Trump\u2019s bidding could direct the DOJ to begin actual criminal investigations.<\/p>\n

Mike Davis, a former clerk to Supreme Court Justice Neil Gorsuch who is now rumored to be a potential nominee for attorney general, illustrated this in a sexist rant<\/a> directed at New York Attorney General Letitia James: \u201cLet me just say this to Big Tish James. \u2026 I\u00a0dare\u00a0you to try to continue your lawfare against President Trump in his second term. Because listen here, sweetheart, we\u2019re not messing around this time,\u201d Davis\u00a0said<\/a>\u00a0on a podcast. \u201cAnd we will put your fat ass in prison for conspiracy against rights, I promise you that.\u201d<\/p>\n

This is the same Mike Davis who previously spoke of his wish to harm Trump\u2019s political enemies: \u201cI want to drag their dead political bodies through the streets, burn them, and throw them off the wall. (Legally, politically, and, financially, of course.)\u201d It\u2019s unclear what criminal charge Davis has in mind when he speaks about \u201cconspiracy against rights,\u201d but in other threats against Liz Cheney and Cassidy Hutchinson, Davis specified obstructing a congressional investigation and lying to Congress as charges he believes should be pursued<\/a>.<\/p>\n

Not only is there zero evidence upon which to open such investigations against James or Smith, much less on which to charge or convict, the motivation Davis expressed also violates the DOJ Manual. For example, Section 9-27.260 pertaining to \u201cInitiating and Declining Charges\u2014Impermissible Considerations\u201d bars the use of \u201cpolitical associations, activities or beliefs\u201d as a factor in the decision to bring charges. Section 9-85.500 of the manual also requires that \u201cfederal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.\u201d<\/p>\n

However, such rules are of little value in the face of an attorney general who\u2019s determined to ignore and violate them.<\/p>\n

Smith and his team started late through no fault of their own.\u00a0By the time Smith was appointed, it was always clear that getting the Jan. 6 case to trial before the election was a tall order.\u00a0Against the odds, in the face of a conservative Supreme Court majority that seemed inclined to allow the clock to run out, Smith\u2019s team made speedy progress with the aid of Chutkan\u2019s no-nonsense management of the case.<\/p>\n

But \u201calmost\u201d in criminal prosecutions counts for nothing.\u00a0History will judge Smith\u2019s efforts only by what in his report sees the light of day.\u00a0And if an incoming Trump DOJ opens punitive criminal investigations, then Smith and many others will suffer the consequences of Garland\u2019s belief that justice must be blind to political realities \u2014 regardless of how much those political realities stand in the way of justice.<\/p>\n<\/div>\n

\n

<\/span>Shan Wu<\/span><\/span><\/a><\/span><\/p>\n

Shan Wu is a legal analyst and former federal prosecutor who served as counsel to then-Attorney General Janet Reno.<\/p>\n<\/div>\n

Read More<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Elon Musk on Friday called for the punishment of special counsel Jack Smith in reply to a post on X from Reps. Jim Jordan and Barry Loudermilk calling on Smith to \u201cpreserve all records.\u201d The exchange signals that while Smith may be winding down his cases against the president-elect, the Republicans are just starting to […]<\/p>\n","protected":false},"author":1,"featured_media":251,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2,4],"tags":[],"class_list":["post-250","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-politics","category-trump"],"amp_enabled":true,"_links":{"self":[{"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/posts\/250","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/comments?post=250"}],"version-history":[{"count":0,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/posts\/250\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/media\/251"}],"wp:attachment":[{"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/media?parent=250"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/categories?post=250"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/tags?post=250"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}