The Weaponization of Justice

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Jack Smith, with a long history of partisan conduct, is the prosecuting attorney in the case in the District of Columbia charging Trump with disinformation regarding the 2020 election, a confection of dubious legal basis.  This week, the parties argued before District Court judge Tanya Chutkin the prosecution’s right to muzzle Trump during his campaign as he and his team poison public opinion and a potential jury pool with leaks and accusations of wrongdoing. Judge Chutkin has a history of sentencing J6 defendants to longer sentences than even the prosecution requested. She warned counsel for Trump that politics had no place in her courtroom, but in at least one transcribed exchange with one of those defendants she tipped her hand, expressing her view that it was wrong that Trump was not yet jailed:

1   judges are taking their fair share of these cases, myself
2  included; and every case presents a different defendant and
3  a different situation, and I know I and my other colleagues
4  endeavor to treat each defendant as an individual and not as
5  part of a mob. But we have to be mindful of what happened
6  that day.
7  Every single time that I see videotape or hear recordings
8  of what happened that day, I am struck anew with both the
9  horror of what was going on that day and how close we came —
10  how close we came to not fulfilling one of the basic functions
11  of our democracy, which is a peaceful transfer of power, which
12  we lecture other governments all over the world on and we’re
13  supposed to be an example of, and we were not that day.
14  And so while Mr. Langmack is correct in that your
15  background didn’t involve any criminal activity, the events
16  of that day and the seriousness of those events cannot be
17  understated. This was nothing less than an attempt to
18  violently overthrow the government, the legally, lawfully,
19  peacefully elected government by individuals who were mad
20  that their guy lost.

1  seem woefully ignorant; not to the ideals of this country;
2  and not to the principles of democracy. It’s a blind loyalty
3  to one person who, by the way, remains free to this day.

Depending on which source you read about her decision on this — she either slapped down the prosecution or preserved Trump’s right to free speech.

In actuality, I think she is allowing the prosecution to interfere with his reelection bid, and has greased the ladder to intervention by the Supreme Court.

An online poster with the nom de pixels “Shipwrecked Crew” is a very experienced criminal lawyer. I credit him, far more than the journalism majors, wet behind the ears, who make up most of the legal commentary in the major media. He says this about this week’s Chutkin order.

It “invites a ton of litigation over whether discovery provided by the [prosecutor] is properly designated as ‘sensitive’ because it allows [him] to make the initial determination with no judicial oversight. So the Prosecutor controls what material the defendant can discuss in public. “That won’t stand up to scrutiny.” There’s a suggestion in her comments that not only the prosecution, but the Pretrial Services branch as well, will be monitoring Trump’s public statements, “[T]he idea that either the executive Branch or the Judicial Branch is going to monitor political speech for — a candidate who enjoys the presumption of innocence still — that will consist of noting evidence of his innocence for purposes of a advancing his political campaign, is a situation that presages a battle that might very well get Trump out of the District Court and onto an appellate track. Decisions by the District Court that impact pretrial release are immediately appealable — unlike most other issues at the District Court level in a federal criminal case. Once on that road, a lot of other options begin to present themselves. Then it becomes a matter of pushing the envelope in what you can get higher courts to take up as collateral matters. 

Receiving more coverage this week was Friday’s appointment of a special counsel to handle matters involving Hunter Biden — and perhaps his father and other family members.

Once upon a time in America we had a statute permitting the appointment of independent counsels. They operated independently of the Department of Justice but with oversight by a three-judge panel of the U.S. Appellate Court of the District of Columbia. After the Ken Starr probe of the Clintons, Congress in 1999 allowed the relevant statute to lapse. The Department then adopted regulations respecting creation of special counsels. Such appointees must “have a reputation for integrity and impartial decision making” and are supposed to come from outside the government. They report to the Attorney General, who can fire them. In fact, the requirement the counsels are supposed to come from “outside the government” was ignored in 2003 when James Comey appointed Patrick Fitzgerald special counsel in the Plame case. And the department ignored the clear terms of the regulation again in 2020 when John Durham was appointed to investigate charges of Russian interference in the 2016 election.

To avoid any confusion, let me begin by explaining the difference between a Special Counsel and an Independent Counsel. It’s a significant and historical one. Essentially, special counsels offer a cover for Attorneys General by allowing a not really independent person to act as a buffer — a front if you will — to shield them from politically sticky stuff. At the end of their work, such counsels are to prepare a written report to the Attorney General who in his discretion decides whether or not to make the report public.

In this case, the appointment of David Weiss as special counsel was met with disbelief. Professor Jonathan Turley details why this was such an outrageous move by Attorney General Garland:  

This is, after all, the same Weiss who headed an investigation that was trashed by whistleblowers, who alleged that his investigation had been fixed from the outset.

It is the same Weiss who ran an investigation in which agents were allegedly prevented from asking about Joe Biden, obstructed in their efforts to pursue questions and compromised by tip offs to the Biden team on planned searches.

It was also the same Weiss who reportedly allowed the statute of limitations to run out on Hunter’s major tax offenses, even though he had the option to extend it.

It was the same Weiss who did not indict on major tax felonies and cut a plea deal that brushed aside a felony gun charge.

It was the same Weiss who inked a widely panned “sweetheart” deal that caused a federal judge to balk and trash a sweeping immunity grant — language that even the prosecutor admitted he had never previously seen in a plea deal.[snip]

The immediate effect of this belated appointment will be to insulate Weiss and the Department from Congress as it prepares to interview Weiss and members of his team.

Yet if that was truly his purpose in doing this, Garland might have been too clever by half. First, since Garland did not appoint someone from outside of the Department (as envisioned under Section 600.3 of the statute). 

Of course, Garland could insist that, although this appointment from inside the Justice Department violates the statute, Special Counsel John Durham was also selected from the department’s ranks. Yet that does not excuse the appointment of a prosecutor who has been accused of conflicts of interest and false statements — the very antithesis of a special counsel who is supposed to have “a reputation for integrity and impartial decision-making.”

Did Garland think this appointment would foreclose any further work by the House Oversight Committee into President Biden’s corruption? The editors of the Wall Street Journal opine that now both Messrs. Weiss and Garland will claim they cannot cooperate with the committee because of an “ongoing investigation”

“We are now going to have a presidential election debate adjudicated in effect by special counsels. Don’t expect any of this to calm our partisan furies or restore faith in nonpartisan justice.”

Shipwrecked Crew predicts Weiss will offer a diversion deal on the gun charge and avoid a felony, noting that the charge potentially has constitutional problems. Hunter’s big problem, he thinks, is that the department’s tax division has already authorized a felony tax evasion count for 2018 in California, and while as a U.S. Attorney in Delaware, Weiss couldn’t bring that case there, as special counsel he can bring an indictment in California, The statute of limitations on that count doesn’t take effect until 2024. If so, it’s unclear which judge would preside over the trial. As he believes any Biden appointee would recuse, Turley thinks Weiss might also pursue Hunter’s failure to register as a foreign agent and other crimes detailed in the now abandoned plea bargain.

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