Constitutional Vanguard: Can Trump Really Order the Cases Against Him to Be Dismissed?
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.
First
Patterico (0883ac) — 7/29/2024 @ 8:30 amThought provoking post!
Also, I was just in Switzerland in late June.
Where’d you go?
We flew in/out of Zurich and spent the bookend days there. Then, we HQ’ed in Grendenwald and spent a very active touristy trip all over that area.
My favorite was visiting Wenden and Lauterbrunnen.
whembly (477db6) — 7/29/2024 @ 8:52 amI think the larger issue for Chutkan, is the inevitable motion to disqualify Smith because he wasn’t President appointed/Senate confirmed (ala the Florida Document case).
If the 11th Circuit upholds…
Then if Chutkan rejects that motion, that’ll create the circuit split that’ll have to be resolved by SCOTUS.
I know you think Judge Cannon is a hack.
But, work with me here on this hypothetical:
If SCOTUS overturns Judge Cannon and that Jack Smith’s position is given the nod of approval by the high court…
What’s to stop AG Ken Paxton from tapping Sidney Power as Special Counsel in going after Democrats? Particularly those Democrats who (in their words) abused their office in engaging lawfare?
whembly (477db6) — 7/29/2024 @ 9:15 amMore power to him-if there is a statute Democrats violated they should be prosecuted.
Rip Murdock (4074ee) — 7/29/2024 @ 9:35 amOutside of tradition, there is nothing in the Constitution that bars a President from ordering the prosecution of a specific individual.
Rip Murdock (d2a2a8) — 7/29/2024 @ 9:47 amI think we should NOT want to make this routine, as in plucking some rando prosecutor and give that person the SAME prosecutorial powers, with an unlimited budget as a POTUS nominated/SENATE confirmed federal prosecutor.
All because it gives the administration some “plausible deniability” cover that’s really superficial.
It’s ripe for abuse, and likely unconstitutional.
whembly (477db6) — 7/29/2024 @ 9:50 amProbably the best way to avoid all these problematic situations is to not elect Trump.
Appalled (0df4ba) — 7/29/2024 @ 9:54 amHow would it be unconstitutional? And why a special prosecutor be needed-any US attorney could be ordered to indict whomever the President desired.
Rip Murdock (d2a2a8) — 7/29/2024 @ 9:57 am@8
Was the prosecutor nominated by POTUS and confirmed by SENATE?
whembly (477db6) — 7/29/2024 @ 10:04 amI’ve always thought that the AG should be appointed by the losing presidential candidate.
Kevin M (a9545f) — 7/29/2024 @ 10:10 amOutside of tradition, there is nothing in the Constitution that bars a President from ordering the prosecution of a specific individual.
Aaron Burr’s prosecution did not upset Jefferson greatly.
Kevin M (a9545f) — 7/29/2024 @ 10:12 amCertainly there are better MAGA lawyers than Ken Paxton, author of the ludicrous Texas v Pennsylvania bilge.
Kevin M (a9545f) — 7/29/2024 @ 10:18 am@12
Absolutely… I was just using him in a hypo.
I don’t want a Special Counsel Sidney Powell, or Special Counsel Mike Davis (who’s eminently competent).
The nomination/confirmation process is meant to *check* the executive from picking someone if Senators worries about the politics of such nomination. Now the Check & Balances practices has been weakened over the years, but that’s the intention.
whembly (477db6) — 7/29/2024 @ 10:57 amRip Murdock (d2a2a8) — 7/29/2024 @ 9:47 am
You need to convince grand jury to indict for offenses that require an indictment, and that means that there needs to be a certain surface plausibility to the charges.
Incidentally, as whembly subsequently corrected, her name is Sidney Powell, not Sidney Power. The person with the surname of Power is Samantha Power.
Naming he might possibly violate some Justice Department regulations, which would also have to be changed before.
And of course, there are the political consequences.
Sammy Finkelman (e4ef09) — 7/29/2024 @ 11:31 amThe problem with Jack Smith was his alleged legal independence of supervision by any Senate confirmed official.
Prosecutors can also be appointed by judges if authorized by law, as was the case with the independent counsel law, which existed between 1978 and 1999 except for a lapse between February 1992 and July 1, 1994. (it also had bee extended one or two times before)
President Clinton tried to put all investigations of himself (including, really, state investigations) into the hands of a lawyer whom he could trust (Robert B. Fiske Jr.) by having Janet Reno first appoint him and then later invoke the special counsel law, hoping that 3 federal judges would ratify the appointment.
But they didn’t, and instead named Kenneth Starr.
Sammy Finkelman (e4ef09) — 7/29/2024 @ 11:44 amI think the Supreme Court, in its immunity decision, was trying to prevent something like this, which happened in Texas, where a Governor was indicted for threatening to veto a piece of legislation.
https://www.texastribune.org/2016/02/24/texas-high-court-dismisses-rick-perry-indictments
Sammy Finkelman (e4ef09) — 7/29/2024 @ 11:46 amAs I indicated earlier, Jefferson moved heaven and earth to get Burr tried for treason. It took 4 tries to get an indictment and he even put pressure on the judges. In the end, Marshall acquitted Burr and later Jefferson had him retried him on some neutrality misdemeanor and he beat that, too.
Of course this was at the dawn of time, but there have been other cases where Presidents have weighed in, or had made their feelings so clear that underlings knew what to do without being told.
Wilson may not have directly ordered the arrest of Eugene Debs, but the intense repression he had ordered in support of his War to End All Wars directly led to it.
Johnson made it very clear that federal civil rights laws were to be used aggressively to fight the Klan. After the murder of 3 civil rights workers in Mississippi, LBJ strong-armed FBI Director Hoover into investigating the crimes. Between him and AG Kennedy, nothing was left to underlings to decide.
Are these wrong things? One yes, one no. But the idea that national authority can never galvanize reluctant underlings into action seems a poor rule.
Kevin M (a9545f) — 7/29/2024 @ 3:34 pmIf President Trump ordered the US Attorney in the Southern District of New York to prosecute Judge Eragon for some crime, it would be perfectly constitutional.
Rip Murdock (d2a2a8) — 7/29/2024 @ 4:45 pmwhembly,
The Lauterbrunnen valley is my favorite place on Earth, and we spent nearly a week there before going to Tuscany for the guitar workshop I mentioned. Any time we go to Rurope we try to make a side trip to Lauterbrunnen, so this is probably the 6th or 7th time we were there. The weather was drab except for the first day. We went to Wengen, Mürren, Grindelwald, Gimmelwald, Interlaken—pretty much the usual high spots. That was all late May. Glad you got to go. It’s truly one of the most beautiful places on the planet.
I guess we’re making this thread about the appointment of the special counsel rather than the things I wrote 21,000 words about?
Patterico (7af7b6) — 7/29/2024 @ 5:23 pmI wrote about that in the newsletter, Sammy.
Patterico (7af7b6) — 7/29/2024 @ 5:24 pmA special prosecutor doesn’t need to be nominated by the POTUS or confirmed by the Senate. Hunter Biden hopes that the hack in Florida gets upheld in the 11C.
Colonel Klink (ret) (96f56a) — 7/29/2024 @ 5:25 pmSeems like a bad idea to immunize the national authority for that then, huh?
Patterico (7af7b6) — 7/29/2024 @ 5:25 pmSeems like a bad idea to immunize the national authority for that then, huh?
I do not want to defend every letter and comma in the SC decision (as that would require, for example, reading it in detail) but the idea that the Executive has unique duties, such as the ultimate responsibility for national defense tells me that treating him identically to someone picked at random is unreasonable.
Is he “above the law”? No. Is he subject to the same law, or the same treatment of the same law? He often cannot be. He, or his delegates, may order military action wherein people die. Is he above the law against murder? No, but there is an asterisk here.
This is a hard problem. Even with respect to petty criminality it is a hard problem. The Founders spent (literally) weeks on problems with an out-of-control Executive. See Farrand, Book II. The length of the term, whether he could be impeached while in office (and the implied immunity from criminal charges while in office), who could impeach, who held the trial, whether re-election was possible, even who elected him all figured into this.
They possibly failed when it came to impeachment and we find ourselves trying to deal with that as a criminal justice matter.
My feeling is that blanket immunity is not correct, or sustainable. As a first cut, I’d argue that “core powers” be interpreted narrowly and claims to immunity for ancillary things be treated with deep suspicion. For example, paying off a hooker is not a core power. Nor is inciting a riot that targets Congress. Nor is attempting to falsify (American) elections. Nor is forging evidence against someone EVEN IF you know through inadmissible evidence that the guy is guilty.
But killing the monstrous dictator of a country that is flooding your borders with pitiful refugees? Maybe that.
Kevin M (a9545f) — 7/29/2024 @ 7:12 pmYou know what is a terrible way to deal with hard problems? Constitutional law. This is a matter for the legislature.
Kevin M (a9545f) — 7/29/2024 @ 7:14 pmKevin M,
Have you had a chance to read the second half of the newsletter, on the immunity decision? No problem if you haven’t. I can’t expect people to read a novella-length piece in a day. But given your interest in the topic, I think you’d find it worth your time. I have my own proposal for how to handle the issue, and I think I show respect for the concerns the majority expressed, even if I think their decision is a travesty.
Patterico (534561) — 7/29/2024 @ 8:11 pmThis all underscores the reality that policies actually matter. Talking about crime and justice but thwarting it at every turn as a policy is a real problem.
Colonel Klink (ret) (96f56a) — 7/29/2024 @ 9:12 pmDonald Trump is a pustule on our politics. Sadly, he is not the only one. We are in a time of small minds with large desires.
Kevin M (a9545f) — 7/29/2024 @ 9:53 pmWhile I firmly believe that the idea of a self-pardon would have shocked the Founders, they were unfortunately overridden by the careless framers of the 25th Amendment and a self-pardon-by-proxy would be valid.
Kevin M (a9545f) — 7/29/2024 @ 10:13 pmReading/skimming through the substack, I noticed this:
This would be a violation of Article I, Section 9, discussing emoluments. This particular motive would seem to be relevant. If the money came instead from Texas, it would also violate Article II.
Kevin M (a9545f) — 7/29/2024 @ 10:27 pmIn general, I like your corruptness test but I have a quibble. I would seem that a President could still have Seal Team 6 murder his election opponent so long as his reasons were not “corrupt”. Say, for example, he sincerely believed that the opponent was the Manchurian Candidate. Or even that he sincerely believed that only HIS continued guidance could keep America safe. That may be crazy, but is it corrupt?
I also believe that some thought needs to go into amending the impeachment trial process, notably by taking the Senate out of it somehow.
Kevin M (a9545f) — 7/29/2024 @ 10:38 pmHas the mandate in the immunity decision issued yet?
Supreme Court mandates are issued by the White House, signed by the President. What if Biden refuses to sign it?
What happens to Supreme Court decisions if the mandate is not issued? Does the case remain in limbo perpetually pending in the Supreme Court?
nk (bb1548) — 7/30/2024 @ 6:32 am@19
Yup, we hit all those places you mentioned… truly the most beautiful on earth (at least to where I’ve been too!).
Next time, we’ve talked about going from Zurich to Lucerne for a few days then staying at Lauterbrunnen for the rest of the trip. My wife is trying to convince me to run off of a perfectly good cliff and parachute through Lauterbrunnen valley… o.O
Sorry buddy.
I do agree with your premise that the Courts “does” have a say on whether or not a case can be dismissed.
whembly (477db6) — 7/30/2024 @ 7:03 am@31
Can you elaborate on this? I wasn’t aware of a process by which a SCOTUS opinion is signed by the President…
whembly (477db6) — 7/30/2024 @ 7:04 amI think in both cases he would be acting to procure an unlawful benefit for himself—the Judge Walker definition.
Patterico (7e54d1) — 7/30/2024 @ 7:11 amCan you elaborate on this? I wasn’t aware of a process by which a SCOTUS opinion is signed by the President…
Not the opinion itself, but the mandate which gives the decision the force of a final order.
And my experience is strictly observational. I saw one. In the 2000 election Bush v. Gore case. It was issued from the White House and signed by Clinton. I do not know what rules or statutes are involved.
nk (bb1548) — 7/30/2024 @ 7:20 amGreat piece…I especially liked the surprise appearance of Ken Paxton!
I agree that anything can happen at this point. Let’s hope that Trump loses and we have a slightly different legal path. Still, I’m not sure how the politics of all of this plays. We have most of one political party who either don’t care or believe the indictments were political. That doesn’t bode well and I’m not sure the process can save us from electorate nullification.
J6 should have sealed Trump’s faith politically. Even die-hard defenders recognize J6 for teh dereliction of duty that it was…that it merited impeachment and conviction….which would make Trump ineligible to continue to warp our politics. However, tribalism prevents these defenders from concluding that his unfitness was not somehow voted away.
But back to the piece…will there be enough political oxygen to keep these prosecutions alive. I think the self pardon will be real. I look forward to a deep dive into that one. I’m glad you had a nice long vacation and a once-in-lifetime musical experience. Good for you. I wish TD picked you up so you can get a broader audience. I think the readers would love you there. Still, wouldn’t mind seeing some more hot takes here which rise above the usual eye gouging.
AJ_Liberty (392464) — 7/30/2024 @ 8:05 amI hope the self pardon will not be real because Trump is not elected.
But this corrupt travesty of a court decision is still an unexploded bomb in the ruins of the Republic, even if all it got Trump was temporary relief from billable hours.
nk (bb1548) — 7/30/2024 @ 8:29 amIt’s Rule 45, but I guess it does not necessarily apply in this case since the appeal is from the DC Circuit.
TL;DR Never mind!
nk (bb1548) — 7/30/2024 @ 8:38 amI’ll go back and read the immunity section later though I know it will just make me angry…and why do we need an angry AJ_Liberty? I do appreciate the Three Horsemen (Catoggio, White, Patterico) advocating for sanity in our legal system…and some sense of accountability. I also agree that if Trump wins, the immunity opinion might quickly become infamous.
AJ_Liberty (5f05c3) — 7/30/2024 @ 9:52 amimpeachment and conviction….which would make Trump ineligible to continue to warp our politics
Sadly, no. He would still have had his mob and been able to inflict pain and offer rewards.
Kevin M (a9545f) — 7/30/2024 @ 12:52 pm@40
I would doubt that.
Had Congress convicted Trump (ie, post-j6), his influence would wane as other presidential candidates would dominate the media-scape.
whembly (477db6) — 7/30/2024 @ 12:55 pmHad Congress convicted Trump (ie, post-j6), his influence would wane as other presidential candidates would dominate the media-scape.
One would hope, but I expect that his grievances would just be magnified and the press would be unable to leave the troll alone. The candidates would be pressured at every turn to discuss the political prisoner status of the former president.
Even if he loses in 2024, he’ll be a contender in 2028. Even from prison.
Kevin M (a9545f) — 7/30/2024 @ 1:30 pmKevin: Sadly, no. He would still have had his mob and been able to inflict pain and offer rewards.
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”
I agree that he would have retained his true-believers…by definition…but the conviction would not have been reviewable….and to have gotten the conviction, obviously more of the Senate GOP would have had to gone along…perhaps even creating a bit of a tidal wave. We will never know. I agree that he may have lingered but in not being able to hold office and being of significantly diminished status, the floor would have been open for normal candidates to emerge and act normally. With the lingering possibility of indictment and prison time, Trump would have been high incentivized to get along and play for a pardon. His sons just haven’t captured that same magic….yet….
AJ_Liberty (5f05c3) — 7/30/2024 @ 1:37 pmRe: Texas Governor case
Patterico (7af7b6) — 7/29/2024 @ 5:24 pm
Could you post that excerpt here? What did you say?
This must be in the second part.
Sammy Finkelman (e4ef09) — 7/31/2024 @ 1:30 pm7
Yes for sure, its Trump that has caused us to worry about politically prosecuting opponents: It was that abusive and dictator-inclined Trump (right?) that indicted oponents for applying for loans that were repaid on time and with interest; the statute had never been used before unless there was a loss involved, but that budding Maduro Trump used it even though the loan had been repaid; it was Trump who indicted opponents for recording “litigation expenses” that people say with a straight face should have been listed as “Hush Money.”
And for holding on to classified records like multiple politicians had held on to (except that someone in the Natl Archives kept asking for Trump–and only Trump–to return his, so of course when he delayed, and after 248 years of not indicting former presidents, we showed him! We threw a hissy fit like a disrespected hall monitor and indicted him; what a great precedent!
Yes you have it right: we have to be sure that Trump is not elected to prevent this from happening.
Harcourt Fenton Mudd (0c349e) — 8/6/2024 @ 9:59 am