Trump's Coup-Excusing Apologists in the Legal Academy: It is Even Worse than it Looks

"As Mr. Trump’s rhetoric grows ever more vengeful and openly authoritarian, a great deal turns on the willingness of members of the legal profession to make common cause with him."  Kate Shaw, a law professor at Penn, wrote those words in a New York Times op-ed a couple of days ago.  Although Shaw's focus was on the upcoming election-related scramble, her words are just as relevant to what has already happened regarding Trump's thirst for absolute power.

Who are the members of the legal profession who will pave the way to turn Trump's worst impulses into horrific reality?  Last week, I wrote a column in response to an NYT op-ed by another law professor, Jack Goldsmith at Harvard, who worked himself into high dudgeon over the decision by Special Prosecutor Jack Smith to proceed with the federal criminal case against Trump in Washington, DC, regarding the January 6th insurrection.

In classic concern-troll style, Goldsmith wrote that Smith "owes us an explanation" for the horrendous sin of, of, of either thinking about the election or not thinking about the election.  It is truly unclear.  Am I being unfair?  Goldsmith's argument works like this:

-- There are fewer than 60 days until the election, and even though the Justice Department's internal guidance about prosecutorial actions near an election are vague and not binding, Smith should have imposed them on himself anyway, lest he look political.

-- Goldsmith cannot think of any reason for Smith to have proceeded with the next step of his case other than to affect the election, which thus means that Smith is being political.

-- What are DOJ's non-binding-but-so-very-important-for-appearances rules?  Per an IG report that Goldsmith cites:

[P]olitics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election.

-- Goldsmith says that Smith should have taken into account the election by noting that any action he took would possibly appear to be political, so Smith has violated the "politics must play no role" non-rule.

-- What should Smith have done?  Per Goldsmith, he should have selected the timing of his steps by consciously noting and altering his decisions because of how close we are to the election.

So again, this is internally incoherent.  The short version goes like this: "Smith should not have being thinking about the election when deciding what to do next, but he proceeded with his case.  Why wasn't he thinking about the election?!"

As I noted in my column last week, because there are no binding rules in play within DOJ or otherwise, the Goldsmith position is that all Biden Administration officials should take actions and refrain from taking other actions entirely with an eye to the election.  The end of Goldsmith's piece, which I yada-yada-yadaed out of exhaustion at the end my column, includes a list of supposedly unacceptable breaches of the public's trust.  These include President Biden's supposed sin of "stat[ing] that Mr. Trump 'certainly supported an insurrection' about four months after Mr. Smith indicted the former president in connection with Jan. 6."  Wow, a President whose Attorney General scrupulously appointed a Special Prosecutor to insulate the process from presidential influence stated publicly what everyone with eyes and ears witnessed.

And Vice President Harris?  Goldsmith intones that she

also crossed a line when she described Mr. Trump in the presidential debate as 'someone who has been prosecuted for national security crimes' and election interference. Some may say that since she is a political candidate, this is fair game. But she both commented on Mr. Smith’s prosecution (which could influence its outcome) and used the prosecution to hurt her political opponent and help herself in the election. The vice president chose political advantage over commitment to apolitical law enforcement.

Right.  Harris accurately described the legal facts about Trump, but she "commented" on the case, which was apparently an egregious violation of the Marquess of Queensberry rules that everyone follows in all presidential administrations.

As I put it in the title of last week's column, this kind of nonsense is -- or at least should be -- embarrassing.  And of course, Goldsmith is not the only one in on the game.  A reader pointed out to me that my former GW Law colleague Jon Turley also wrote a piece making the same nonsensical point that Goldsmith made.  (Readers who are interested in upping Turley's clicks can search for his column on their own.)

Turley's comments are neither interesting nor meaningfully different from Goldsmith's, so there is no merit in addressing them separately.  Moreover, Turley went around the bend several years ago in defending Trump at all costs (with one of those costs most definitely being irreparable damage to Turley's reputation).  Goldsmith, by contrast, had managed to rehabilitate his own reputation by repudiating the Bush II-era torture memos, but as I put it in a column last year, Goldsmith soon enough showed that that was his "one good moment" before returning to his hackish ways.

But should we consider the possibility that Smith is not completely pure of heart?  After all, my analysis last week was based on the idea that Smith was proceeding apolitically, by which I meant that he was appropriately pursuing speedy justice in the way that any prosecutor should pursue a case while blocking out any political background noise.  But what if Goldsmith is right that Smith committed the thought-crime of being aware of political timing when he took his latest steps to update his case after the Supreme Court's summer bombshell in the Trump immunity case?  Would that be bad -- in the way that Goldsmith and his chorus would have us believe?

The apparent idea behind everything related to Trump and politics is that he is a one-off who breaks every norm, but everyone else has to hold themselves to pre-Trumpian standards.  As I described earlier, however, that is paradoxically tossed aside when convenient, because everyone is also supposed to change their behavior from pre-Trumpian standards because of Trump.

But even ignoring that internal contradiction, we need to ask whether it would in fact be bad if something like these words ran through Smith's mind recently: "The election is coming up, and I want to move as quickly as possible to update my filings precisely because it's important to get this into the legal and public spheres before the election."  In other words, if Smith was not in fact merely pursuing speedy justice and putting his nose to the grindstone, would that make Goldsmith right?

The short answer, unsurprisingly, is no.  Prosecutors are fully aware of timing-related matters all the time.  The most obvious among such matters is the existence of statutes of limitations.  A prosecutor might "rush to the courthouse" to beat a deadline and be right to do so, because otherwise the charged crime might never be adjudicated and thus -- where the defendant would have been found guilty (as the prosecutor of course believes he will be, given that the prosecutor brought the indictment) -- will never be brought to full justice.  Is the prosecutor thinking about timing?  Yes.  If external facts were different, might the prosecutor have worked more slowly or taken things in a different order?  Sure, why not?

Trump has very explicitly made the election itself his version of a statute of limitations.  Given the chance, he will shut down all prosecutions against him.  If he becomes President again -- note that I am not saying "if he wins" but only "if he becomes President," given Trump's attempted coup last time -- there will be no prosecution for his crimes.  Even as it stands, the Supreme Court made sure that there would not be enough time to hold a trial before November 5.  Does that mean that Smith should have folded up his tent and waited to see whether he still has a job after January 20, 2025?  Hardly.

A prosecutor in Smith's uniquely constrained position is essentially left with the option of doing what he can to make sure that serious crimes are punished, or doing nothing at all.  He might have said something like this to himself: "There is exactly one way that these felonies will be tried and the public's interests validated, and that is by letting the public know as much as it can possibly be told before the people vote."

To be clear, I have no way of knowing whether Smith had any such thoughts when he decided to make his additional filing.  If he did in fact think anything along these lines, Goldsmith would surely have an aneurysm and sputter about "standards," as he did in his op-ed last week: "This sort of thinking reflects a tragic eight-year pattern of breaking rules and standards or countenancing breaking them in response to Mr. Trump’s disreputable behavior."  Goldmith then added: "Norms matter only when compliance hurts — when they prevent a government actor from taking an action that serves his or her interests or conception of justice."

That probably sounded profound in Goldsmith's head, but it is nonsense.  It is a heads-Trump-wins-tails-everyone-else-loses version of justice, where we are told to "go high" because Trump must not be allowed to sully our standards.  But "compliance hurts" here not because Smith would be failing to "serve his or her interests" but specifically because an essential "conception of justice" is on the line.  Goldsmith wants to make it sound as if Smith happened to come up with some idiosyncratic, quirky, personal set of standards of justice that must be set aside in the larger context of being a disinterested actor.  That is manifestly not what is happening.

Smith is and should be very interested in preventing an indicted miscreant from gaming the system in order to beat the rap.  That is, every prosecutor's "conception of justice" must surely involve making informed and careful judgments about when and why we "allow ten guilty men to go free lest one innocent man be wrongly convicted."  It is an utter perversion of justice to say that a prosecutor should pretend not to try to be aware of a defendant's extra-judicial manipulations and should not try to stop them or respond to them, even under the most shockingly unique of circumstances.

Again, none of us knows what Smith was thinking.  Goldsmith is worried that "approximately half the country" will question Smith's motives, and that is apparently reason enough to assert that Smith should have taken a path that would make the other (more than) half of the country suspect that Trump was getting a free pass for political reasons.

In short, if Smith was being apolitical, he is on solid ground.  If, however, he was being political in the simple sense of being aware that the election matters to the future of this prosecution, then he is also on solid ground.

To return to the words that I quoted at the beginning of this column, "a great deal turns on the willingness of members of the legal profession to make common cause with [Trump]."  Perhaps the most dangerous of such members of the legal profession are those who impugn the motives of a prosecutor and then pretend that they are merely upholding the highest apolitical standards, all in the service of allowing Trump to escape justice once again.