I’m not so sure, and I explain why in my latest newsletter.

I have been writing this post for weeks. It’s over 21,000 words, which is the length of a short novella. I am spent. The first half is free for all, and explains why I think Judge Tanya Chutkan might deny a Trump administration request to dismiss the January 6 case. The reasoning has to do with Criminal Rule of Procedure 48, the Hillside Strangler case, the Michael Flynn case, and opinions from the Office of Legal Counsel.

The post is long, but I will give you the very abbreviated version here. Criminal Rule of Procedure 48 requires leave of court to dismiss a pending indictment. Case law gives courts only a very limited role in deciding whether to grant leave of court, but the history of the rule shows that a court need not grant a dismissal when the request for dismissal is “tainted with impropriety.” This issue came up when the Trump administration tried to dismiss the Michael Flynn case after Flynn had pled guilty. Arguably a dismissal request that is “tainted with impropriety” includes a situation where the defendant orders his own case to be dismissed. The key point is this: denying dismissal would not force the prosecution to move forward immediately. The case would be stayed during Trump’s presidency in any event. The only question is whether it is stayed during his presidency or dismissed. Judge Chutkan might choose to simply stay the case rather than dismiss it.

Among other things. I imagine a proceeding between Judge Chutkan and Trump’s new Acting Attorney General. Excerpt:

KEN PAXTON: It is the Government’s position that the Court has no role in making any such determinations at all. As we argued in our papers, dismissal is exclusively within the Executive’s purview. This Court, as a part of the Article III judicial branch, simply has no authority to second-guess the Executive when it comes to a motion to dismiss. It would violate the separation of powers for the Court to arrogate to itself such a core executive power.

JUDGE CHUTKAN: I believe that under Rule 48 and under Ammidown I have a more substantial role than that, Mr. Paxton. And so, to make it clear for the record, I am today ruling that for me to grant leave of court for this dismissal, I must be “satisfied that the reasons advanced for the proposed dismissal are substantial” and that you have not abused your discretion in making the motion. I have the authority to deny this motion if I find the dismissal “contrary to the public interest.” And so today, I will examine whether the dismissal serves “due and legitimate prosecutorial interests,” or whether, on the contrary, it is instead a “sham or a deception.”

In the second half, for paid subscribers, I give you an earful about why I think the Trump immunity decision is historically bad. Excerpt:

What in the Constitution gives a president power to order that people be framed for crimes that never happened? In an Orwellian twist, the Supreme Court tells us that one source of that power flows from the president’s power to “take Care that the Laws be faithfully executed.”

In order to ensure that the president may vigorously take care that the laws are faithfully executed, you see, we must make sure he feels free to order the Justice Department to frame people for crimes.

That is an entirely fair characterization of the majority’s opinion. It’s not how they would phrase it, of course. But my characterization flows directly from the language of the opinion.

Read it all here. Subscribe here.