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You are here: Home / Open Threads / Promoted from the Comments: A Very Good Move

Promoted from the Comments: A Very Good Move

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This post is in: 

This makes a ton of sense to me.  Promoted from the comments.

Immanentize

So many thoughts but my top line is that this is a very good move for a prosecution of people around, working for and with Trump, as well as Trump himself. There seems to be a clear organizational theme and good reasons why Jack Smith was chosen.

First, the AG is a political position no matter how much any AG tries to separate themselves from politics. Garland was appointed AG by the current President Joe Biden. He is in the line of Presidential succession if there is a horrible event (number7). The person who is clearly one target of the investigations given to Smith (Trump) has announced he is running for President in 2024. Garland’s current boss, Joe Biden, has also said he is planning to run against Trump. Bit of a conflict maybe that Trump would exploit.

Second, the cases going over to the new SC seem to be the ones closest to Trump: the documents investigations (and national threat assessment) as well as some of the J6 cases. This latter category is, to me, plainly those investigations having to do with coordinated congressional efforts to stop the transfer of power (including Congress Critters as defendants?), maybe the Secret Service seditious conspiracy, maybe FBI similar complicity, and certainly the fake electors gambits in several states (Hello, Ginni Thomas). Smith will not be directly involved in the rioting charges and trials, but the things learned there will help the other cases. Some of those cases implicate other DOJ officials which makes a SC almost necessary.

Third, Smith’s experience in the international realm suggests a broad rule of law perspective, as well as an understanding of international laws and norms, international criminal prosecutions, etc. Maybe the documents case is as much a money laundering case as a stolen documents matter? Maybe an international treasony matter?

Fourth, Smith’s experience suggests not delay, but rather large joined high level conspiracy and international (criminal and diplomatic) entangled team management skills. Getting the whole thing pulled together on one track under one grand theory linking much of the disparate actions we already know about. And the many we don’t.

Additionally, Special Counsels cannot be called before the Jim Jordan Clown Congressional Committee the way that a Cabinet member like Garland can. Yes, they can be called to testify, but they can also say sod off. Additionally, SCs can outlast administrations. See the Durham debacle.

All told, very good move.

Open thread!

Reader Interactions

71Comments

  7. 7.

    WaterGirl

    I personally felt better and more certain after I read this from Imm.

    My first thought had been “oh, no!” after reading a Lawfare article yesterday that said they thought a Special Counsel would not be a good move.

    Then I watched Garland’s announcement, and I felt better, thinking maybe this was an okay thing.

    After reading more comments, and then Imm’s comment, I feel pretty confident that this is the right move.

  9. 9.

    WaterGirl

    Equal time offered to any of our BJ attorneys who wish to share a well-reasoned, alternate view.

    Sorry, Baud, I guess that leaves you out.  //  (adding a just kidding so you KNOW I’m teasing)

  10. 10.

    WaterGirl

    @Wanderer: I think they are all over the theft of the documents.  Seems like we have a magic date coming up soon in the Trump / Dearie / DOJ legal proceedings about the documents.

    Question:  How does this impact those proceedings?  Or does this not impact them at all?

  11. 11.

    Parfigliano

    This is crap.  If the AG cant (wont) prosecute because of politics then why waste all this time with the AG having the case?  Obvious answer to waste time run out the clock and insure prosecution never happens.  No matter what they do Presidents will not be prosecuted.

  13. 13.

    livewyre

    @Parfigliano: You sound very sure that you know what’s going to happen – not only that, but what’s meant to happen. Interesting.

    Message received: they’re all against us, you can’t trust anyone, there’s no such thing as law, democracy is a farce, substitute authority. Something like that?

  15. 15.

    Immanentize

    I am headed out to dinner in a half hour, so I can’t hang around long. But I have to share that my most frustrating experiences (on Twitter and elsewhere) are people who are all turned out to say Garland must act NOWS!!!11!!

    Why does this upset me? Because it reveals they prefer a three hour action thriller movie to actual justice. Do folks know how long a drug cartel, money laundering scheme, or Mob syndicate takes to investigate? Unlikely, because all the investigation is out of the public eye. For very good reasons. But I can report that it takes years, never months, and sometimes many (5-7) years before indictments. Sometimes it ends up with small wars (look at the cases around the Mexican Cartel investigations in the 90’s in which DEA agents, and a lot of innocent Mexicans were killed before indictments).  It takes years and those cases are way less complex because of monetary reporting laws and just the idiocy of drug smuggling and mobsters than what the DOJ faces in these cases.

    Indictments for your emygdyl pleasure are, to me, way less important than eventual convictions of actual criminals. It is a long, tiresome process. I want it solid and that requires a slow path up a ladder from the street level to the top.

    DOJ is just finishing up their first seditious conspiracy trial (with “I shot my own eye out” Rhodes as one of the defendants). Final final arguments will be on Monday (Twitter or DKos: Brandi Buchman; she is such a great live blogger). It has been fascinating to hear what self righteous know-it-all prats these folks were. Still crazy after all these years. But the DOJ has flipped lots of these losers and up the ladder they go.

    It is easy to arrest and indict a street level idiot for specific actions of violence (or drug sales)  and keep him on a leash pre-trial until trial. But lawyers for Trump and Trump? No. They are like kings and we know that if you come for the king….

    So, Hang on Sloopy

  16. 16.

    Burnspbesq

    I don’t care who brings the case, as long as it’s a dead-bang winner and there are no fuckups that could give rise to a successful appeal.

    And I want 2071 included in the indictment, because of the disqualification from holding office that comes with it. Another thing for Trump’s lawyers to fuck up.

  19. 19.

    FastEdD

    I don’t disagree with the appointment of a Special Counsel. One good thing about it is that new charges that come up can be added to the SC’s portfolio. My only objection is that we are running out of time. I wish this had been done a long time ago.

  20. 20.

    patrick II

    I agree with this, but I have a caveat.

    The first, and most important, is that Jan 6 was not made enough of from the beginning.  I realize Joe was elected on the “let’s be reasonable and get things back to the way they were platform” but Jan 6 should have changed that, not in all matters, but in the way we have gone about bringing justice to those involved in the insurrection.  Jan 6 was a big fucking deal, and we played it on the down-low.  The Jan 6 House committee brought light to some of the things that happened, and thank God for that, but that was not the Biden administration. I was particularly unhappy with what I perceive to be the fact that many important witnesses for the committee had not yet been interviewed by the FBI a year after the insurrection occurred.  Jan 6 has been treated as just another legal matter for the justice department to handle in its own way.  It is our first insurrection, so I guess there is no template, but I would have made a much bigger deal of it (because it is) and publicly increased the agents assigned to it by a large number so the investigation could move forward without getting careless.

    I feel the long delay and the suppressed reaction by Biden until recently has normalized too much of existential danger to democracy, and much of the larger conspiracy has been allowed to fester.

    Finally, with his neo-fascist speech, Joe has stepped up and given proper credence to what has been going on.  And it hasn’t hurt the Democratic party politically.  The defense of democracy has been an important issue for Democratic voters in the past election.

    I love Joe, I think he is a fine man and a great politician.  But the investigation and blunt assertion of insurrection and fascism have come much slower than I think was beneficial.

    So, second caveat, is we wouldn’t be in the position of having to investigate and possibly indict a presidential contender if we hadn’t taken so long to get here.  And that includes the stealing of secret documents from the White house.

  21. 21.

    Mo MacArbie

    It’s probably too late for this year, but here’s a suggestion for the future: this close to Thanksgiving, it would be nice if the pie filter served recipes.

  22. 22.

    Mr. Bemused Senior

    Let’s be realistic. How many comments have we seen decrying the numerous voters for TFG? Not half the country, but far too many. Then there’s the GOP almost solidly behind him (in public at least, maybe privately wishing he’d just go away)

    This case, when it’s brought, will have all eyes on it. The prosecution will have to be perfect, air tight, overwhelming. Even then it will be a political battle as well, outside any court room.

  23. 23.

    UncleEbeneezer

    @Immanentize: INAL but Marcy Wheeler noted that DOJ can’t bring an indictment without the documents that they are currently fighting over in the Special Master lawsuits (which should be resolved fairly soon).  Those documents are a huge component of the evidence for their case.

  24. 24.

    Burnspbesq

    @FastEdD:

    My only objection is that we are running out of time.

    Statutes of limitation don’t start to run out until 2026, so that’s a non-issue. Any time in 2023 should be fine. My concern is what Republicans will do to DOJ appropriations for FY 24.

  25. 25.

    livewyre

    No one here is glad for such a process to take this long, but as from just today on a different topic, it takes as long as it takes and there’s no “hardcore” shortcut. Part of trusting it to play out properly, at least for me, is trusting the right decisions to be made at the time that they’re appropriate to make – neither prematurely nor belatedly. Meaning, if it happened now and not earlier, we can safely assume there are good reasons for that. This isn’t being done as a knee-jerk reaction to whatever just happened the previous day. We’re strapped in for the whole ride.

  26. 26.

    MazeDancer

    Additionally, Special Counsels cannot be called before the Jim Jordan Clown Congressional Committee the way that a Cabinet member like Garland can. Yes, they can be called to testify, but they can also say sod off.

    Additionally, SCs can outlast administrations. See the Durham debacle.

    Reason enough to do it.

    Thanks much, Immanentize!

  27. 27.

    Anonymous At Work

    Another note about Jack Smith’s work at ICC is that a lot of the war crimes in Kosovo and other places involve “legal” actions by unlawful political actors.  Their written declarations are things like “restore order where order has broken down” and “confiscate illegal weaponry”.  Basically, paper covers to deeper crimes that, at times, lack a direct paper trail on purpose.

  28. 28.

    dm

    Is it also the case that one other thing appointing a Special Counsel does is hinder the defense in a trial saying to the jury, “This is an attempt to take down a political opponent” and creating a reasonable doubt in the jury’s minds that this may be true?

    With an independent counsel, they can make the claim, but it’s not as convincing.

  29. 29.

    Layer8Problem

    All I’m saying is that this crap happens soooo much faster on the legal teevee shows, you know what I’m saying?  I mean four, five episodes tops.  And that’s if it’s a big case.  //

  30. 30.

    Immanentize

    @UncleEbeneezer: They COULD indict without them. DOJ has them all and has not been prevented from reviewing them (especially for national security threat analysis) but the WILL NOT because they are trying to go the careful full rule of law route. Which includes respecting even captured but confirmed federal judges.

  31. 31.

    CaseyL

    Thank you, Imm, for a well thought-out strategic look at the appointment of a Special Counsel.  I particularly like the part where a SC doesn’t have to show up at one of the GOP’s show hearings.

    I didn’t know what to conclude from the DOJ announcement: on the one hand, I trust Garland. OTOH, I don’t trust the MSM, and never mind the GOP, not to make a feculent circus out of any indictments of high-ranking former officials  – or even the ongoing investigation itself.  Anything that can insulate Justice (literally and metaphorically) from GOP/MSM incoming fire is a good thing!

  33. 33.

    Enhanced Voting Techniques

    I think what’s going on, the midterms made it clear the to DoJ there would be no retaliation from the GOP for going after Trump legally.  Do note that the House Republicans were vowing in investigate Hunter Biden’s laptops until McCarthy’s cows come home to his Napa Vineyard*, not investigate everyone investigating Trump.

    Related news the “Trump was just using us all long!” stories from Evangelicals has started.  By next spring Matt Gaetz will posting stories about “Trump who, I never heard of him”

    * Presumably it grows hard working, economically anxious grapes.

  35. 35.

    Lacuna Synecdoche

    Let me add my voice to the “Thanks for writing and promoting this, Immanentize and Watergirl.”

    I think the concerns I mentioned in the previous thread are still valid, but this post clearly articulates why they are outweighed by the need for a special counsel.

    In other words: I wasn’t convinced it was the right move before, but I am now.

  40. 40.

    JPL

    Thanks Imma!   Some initial concern could be that some of us have felt trump should have been punished from his real estate dealings in NYC long before he ran for president.  It was a real here we go again moment.

  42. 42.

    Dan B

    @Immanentize: Will the GOP sink the economy in 2023 or 2024 to tar Biden and favor Death Santa?  Is it all for their fever dream of paradise where uppity women, scary BiPoc’s, and pedophile LGBTQ’s are punished and or vanished?  Also the poors will be encouraged to work harder!  And scary diseased, rapist immigrants (brown and black plus mooslim) git deported

    And thanks for your clear reasoned logic!!

  44. 44.

    UncleEbeneezer

    THREAD:

    14/ What it signals to me is that an indictment of Trump is likely. I don’t say that lightly. During the Mueller investigation, I said that his report would disappoint Trump’s critics. I didn’t think the “extortion” of Ukraine was prosecutable. I’m skeptical of 1/6 charges.

    15/ But the Mar-a-Lago documents case is more like the drug cases I prosecuted as a junior prosecutor than the complex white collar cases I’ve handed since then. A conviction doesn’t turn as much on intent or state of mind. If you have the docs (or drugs), you’re guilty.

    16/ So despite skepticism, I believe this announcement will turn out to be extraordinarily significant. The end result will likely be a Trump indictment. A trial before the election is likely, but Smith’s appointment makes this more likely to outlast the Biden presidency. /end

  49. 49.

    Ishiyama

    I am a lawyer with decades of experience and I have no idea if appointing the Special Prosecutor was desirable or necessary, nor do I have a clue about what the outcome will be. Too many variables, not enough information.

  50. 50.

    Omnes Omnibus

    To the extent that anyone cares, I agree with Imm. Also, my reply when someone texted me about this was: Shit is getting serious.

    I don’t have much else to say about it.

  52. 52.

    Jill

    Couldn’t agree more!

    The country is playing strip poker with trump and the winds have changed, the country is starting to get some good hands, stripping away trump and the gop’s facades revealing the depths of their depravity, that they are utterly bereft of ideas, have no interest or intention of legislating and are screwing their constituents all while amassing more  power and wealth, which is all they are interested in, and on and on until there is not a shred of them left that anyone can hang on to.

  53. 53.

    FastEdD

    The conditions that warranted a Special Prosecutor existed in 2021. By naming one on the same week that R’s take the House and the same week TFG announced his candidacy AG Garland looks like he did it for political reasons. And he swore that his actions would be apolitical. If he named a SC last year it would not have that effect.

  54. 54.

    Kathleen

    @UncleEbeneezer: Do you read Teri Kanefield by chance?  She is a lawyer who has done excellent work explaining like Immanenentize just brilliantly did the painstaking work needed to build a solid case. This is her URL https:terikanefield.com if you’re interested. She sends out a blog post every Sunday. While respectful, she maintains that most of the lawyers on cable TV do not understand criminal law or federal prosecutions. Her blog also has FAQ’s about the process Garland is following

  56. 56.

    HumboldtBlue

    @FastEdD:

    The AG is a political appointee, and this was never NOT going to be both a legal and a political battle. Garland moved to insulate the DOJ from the clown show of hearings the GOP is ginning up. There is no win here for Garland when it comes to being “political” the very nature of the proceedings are inherently political and there is no escaping that.

    Smith was appointed to oversee the ongoing investigations into the stolen documents and Jan. 6 and do it in the run-up to a presidential election that will involve the current president and possibly Trump.

    That’s a political call and a legal one as well, and in the interest of transparency, Garland made the call.

  57. 57.

    Ruckus

    @Immanentize:

    Thank you for this. It has confirmed not what I knew, which is pretty much nothing about the law but what I suspected – there is always more to the law than meets the common eye.

    People seem to complain without knowing any of the details and this concept of a Special Counsel seems to be one of those times. Garland is a savvy guy with a lot of special experience and people like me are not. I figured that if Garland was doing this he knew far more about how it works than most.

  58. 58.

    WaterGirl

    @Mo MacArbie: That’s a fun idea.  I’ll have to look at how the text is formatted to indicate the end of one quote and the beginning of the next.

    This is a good reminder that I need to add the holiday pastries back in.

  60. 60.

    JoyceH

    @Ishiyama:

    I have no idea if appointing the Special Prosecutor was desirable or necessary, nor do I have a clue about what the outcome will be. Too many variables, not enough information.

    Pretty much same here. The responses I see range from “oh, no, this is terrible!” to “oh, yay, this is great!”, and both coming from experienced former federal prosecutors, so…. geez.

    All I know is that if I were Trump, I’d be quite concerned to learn that I was being investigated by a man operating under an obvious pseudonym. (I mean, really. “Jack Smith”? Come ON!)

    Who is he REALLY? Word on the street is that he’s actually a TCD Special Agent with the MBI. (That’s the Timeline Corrections Division of the Multiverse Bureau of Investigations.)

  62. 62.

    UncleEbeneezer

    Based on this language alone, the case for appointing a special counsel to oversee the Trump investigations seems compelling. Now that Trump has announced, Biden’s DOJ is investigating and potentially prosecuting a candidate who will undoubtedly be a front-runner for the nomination to run against Biden in 2024. It’s hard to imagine a starker conflict of interest. Any resulting prosecution could easily lead to a perception that the attorney general is trying to “take out” one of his boss’s chief political rivals.

    Some have suggested there is not a real conflict because Biden has not officially declared he is a candidate. But all indications are that Biden does intend to run for a second term. (Would those making this argument prefer that we get six months or more further down the road, Biden officially announces, and then we have a special counsel?) But regardless, even if the candidate were a different Democrat, a conflict of interest remains if a Democratic DOJ is investigating a leading Republican candidate.

    It’s clear there is a conflict of interest. Even some who argue against a special counsel agree there is a conflict here for DOJ. But that’s not necessarily the end of the inquiry. Under the regs, it is still up to Garland to determine whether the public interest favors appointing a special counsel or keeping the investigations within the “normal processes of the Department.”

  63. 63.

    UncleEbeneezer

    Anybody arguing the appointment of a Special Counsel slows down investigations is making an unsupported assumption. Every investigation is different. This is not Mueller; here, there is already grand jury testimony being heard. Also, Mueller actually moved quite fast. 1/

    When Mueller was appointed, it was because Comey was fired and Trump was directly pressuring law enforcement to stop probing Michael Flynn. To my recollection, there was no grand jury impaneled for Flynn or others yet. 2/

    Mueller was appointed mid-May 2017. By October, he indicted Manafort and was ready to charge Flynn. By December, he had Flynn pleading guilty to lying to investigators and admitting to failing to disclose lobbying for Turkey. 5 months—and Mueller started with no grand jury. 3/

    Here, the grand juries hearing the January 6 evidence that involves Trump have been empaneled for months. Already, there is a sealed decision on a high-stakes privilege dispute. Much headway has been made already on this front. 4/

    The grand jury in the Mar-a-Lago probe has also made progress; we know Kash Patel was granted use immunity to testify, and that other witnesses have been testifying. 5/

    So Special Counsel Smith is not starting from scratch; far from it, he has a lot of progress being handed to him by DOJ. That’s unlike most Special Counsels in recent memory. And if he moved at Mueller’s pace he could bring charges in either scenario within 5-6 months. 6/…

  65. 65.

    MagdaInBlack

    @UncleEbeneezer: I listened to Renato on my drive home. He was on my local progressive radio station. Glad you posted this thread.

    And thank you, Immanentize. I needed this line of thought.

  66. 66.

    David 🌈☘The Establishment☘🌈 Koch

    I’m old enough to remember when blogs thought the appointments of Patrick Fitzgerald and Mueller were great ideas and were sadly disappointed.

  67. 67.

    Another Scott

    @David 🌈☘The Establishment☘🌈 Koch:  Heh.

    I’m old enough to remember when TFG realized he was “fucked” when Mueller was appointed Special Counsel.

    He was President, and had the full power of the Executive Branch at his command then.

    He doesn’t now.

    His flunkies and enablers seem quite upset about this development.

    Something something exceedingly fine.

    Cheers,
    Scott.

  68. 68.

    HeartlandLiberal

    I had mixed feelings, but this post made it clear to me that it was a smart move.

    Posted link to post on the #StarlinkSnowflake ‘s Twitter, which I have yet to abandon ship on.

  69. 69.

    J R in WV

    I follow Emptywheel blog to keep up with the prosecutions and investigations related to TFG, and quite enjoy it with the exception of one of the associate lawyers, bmaz, who seems more irritable than anyone here on B-J.

    I was kiinda neutral about the special prosecutor, until I realized he has spent the past several years working on War Crimes related to the sectarian violence resulting from the end state of Yugoslavia. I thought that was probably the best on the job training for investigation of the criminal ChristoFascists surrounding TFG that anyone could have arranged.

  70. 70.

    Harald

    @Layer8Problem: Trump has always been treated with kid gloves, by banks, prosecutors, congress, and bankruptcy courts, and now as a traitor to our country, by the Attorney General. So why even have an Attorney General,? Why have an investigation when all #Repugnicans called to testify refuse to show up? The Democrats and the #Repugnicans have made a farce out of the US legal system, and most of them are lawyers and should know better. At least as lawyers they know what they are doing, they know they are circumventing the legal system and the law. These lawyers are avoiding enforcing and prosecuting the most important laws in the books, the laws Trump has already broken. So don’t give me the BS about the special prosecutor crap being a good move.

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