When groupthink takes hold in Washington, the consequences can be dire. That’s what happened in the middle of the Biden administration, when legal elites almost uniformly decided that Donald Trump needed to be criminally prosecuted for the events leading up to the Jan. 6, 2021, riot at the Capitol. Those who warned that the case was questionable or could backfire politically were lectured that “no one is above the law.”
In fact, the case did backfire. The surprise was how spectacularly. Special counsel Jack Smith’s prosecution probably helped Trump win the 2024 GOP primary. And the decision to rush a flawed case to the Supreme Court ahead of the general election last year prompted the justices to recognize presidential immunity for official acts. Now a vengeful Trump can govern in his second term with an extra layer of legal protection.
Trump’s return to the White House ended the federal election-interference case against him, but a parallel state racketeering prosecution in Georgia lived on. Last week, the Georgia state prosecutor dropped that case as well. His sober memo reflects that just because a case can brought doesn’t mean it should be. It’s a pity that in 2023 then-Attorney General Merrick Garland didn’t make the same judgment. He’d have been crucified by his party, but the country would be in better shape.
The Georgia non-prosecution memo is written by Peter J. Skandalakis, executive director of the nonpartisan Prosecuting Attorneys’ Council of Georgia. Skandalakis took control of the state’s prosecution after the Fulton County district attorney was disqualified over a romantic relationship with another prosecutor. His memo explains that Georgia’s 2023 indictment of Trump and his associates for trying to reverse the state’s election result leaned too heavily on political speech. Lying about an election, however dishonorable, is not a crime.
“Statements regarding the 2020 election, whether addressed to small groups or the broader public, are framed as criminal acts in furtherance of the alleged conspiracy,” Skandalakis explains. “I have grave concerns that prosecuting individuals for such speech would raise serious constitutional questions.”
According to “Injustice,” a new book by MS NOW’s Carol Leonnig and The Post’s Aaron C. Davis, Garland had similar concerns about the federal case against Trump. When Smith first presented the attorney general with his proposed election interference case, the book reports, “Garland was visibly unenthusiastic” and worried the indictment could be “vulnerable to claims that its accusations interfered with Trump’s right to free speech.”
Skandalakis particularly rebuked the decision to prosecute Jeffrey Clark, a Trump Justice Department official who wanted the department to join the president’s effort to sow doubt about the 2020 results in key states. Clark wrote a draft letter alleging “significant concerns” about the election, but his superiors prevented him from sending it out.
“The charges brought against Clark are especially concerning,” the Georgia memo says, in part because the prosecution would be “complicated by attorney-client and work-product privileges, which shield pre-decisional legal analysis and internal communications among DOJ attorneys.” It adds: “Giving advice that is rejected is not a criminal act — it is simply an attorney fully explaining a matter to a client.”
Notably, it was this part of Smith’s case that most concerned the Supreme Court as well. The only section of the federal case that the justices definitively threw out in their 2024 immunity decision was the section involving Clark. They reasoned that the president’s communications with the Justice Department needed to be shielded from criminal prosecution.
According to Leonnig and Davis, Garland initially believed that “one of the only ways a case could quickly build toward Trump would be based on new evidence that Trump or his campaign had provided financial support or direction to rioters.” No such evidence linking Trump directly to the violence was found. But Democratic pressure built, especially as Trump showed political resilience, and Garland ended up signing off on Smith’s imperfect charging plan.
Maybe the voices urging caution shouldn’t have been stigmatized as riot apologists. Leonnig and Davis report that some lawyers in Garland’s department believed that while Trump “behaved reprehensibly by pushing a lie,” the evidence that he “plotted to defraud the American public seemed thin.” It was a “great story,” one said, “but not a great criminal case.”
Bad cases make bad law, as the saying goes. The first case criminalizing a president’s official acts should have been overwhelming and airtight. Instead, President Joe Biden’s Justice Department jammed the Supreme Court with a legally vulnerable prosecution of Biden’s top political rival on a rushed election timeline. It was foreseeable that this would disturb the justices. Their sweeping immunity opinion, in turn, has given Trump leeway to take more radical actions in his second term.
Smith recently gave a rare public interview. He’s naturally defending his decisions as righteous and nonpartisan. But hubris and dogmatism are just as likely as partisanship to lead to tragedy. Garland was invested in restoring the Justice Department’s independence from political pressure. The best use of his independence would have been to tell the special counsel, “No.”
The post Georgia’s prosecutor drops a Trump case. If only Garland had done the same. appeared first on Washington Post.
