I am pleased to be publishing a piece this morning at The Bulwark. It is a relatively concise (1,100 word) version of an argument I made in a more sprawling (10,000 words) fashion at my Substack. In it, I take on the conventional wisdom that if elected again in November, Trump will easily be able to dismiss the federal January 6 case against him. If the Substack was too long for you, try the Bulwark piece. Here is the nub of the argument:

The Supreme Court has said that “the salient issue” is “whether the Government’s later efforts to terminate the prosecution” are “tainted with impropriety.”

It is difficult to conceive of anything more “tainted with impropriety” than a criminal defendant ordering the dismissal of his own criminal case.

And it is hard to imagine a defendant more “well-connected” than one in charge of the Department of Justice, with the power to dismiss charges against himself. For these reasons, Trump’s request for dismissal would be closely scrutinized by Judge Tanya S. Chutkan, the judge presiding over the federal January 6th case.

As for the concern that it violates the separation of powers for the judiciary to make the prosecution proceed on a case, I argue that this concern does not apply:

Judge Chutkan need not, and indeed cannot, tell the Department of Justice to pursue this prosecution during Trump’s presidency. It is the longstanding view of the Department of Justice and the Office of Legal Counsel that DOJ may not prosecute a sitting president. If Judge Chutkan denied the government’s motion to dismiss, DOJ would not immediately resume the prosecution. Rather, Judge Chutkan would order proceedings in the case to be stayed until Trump is no longer president. At that time, the Department of Justice could decide whether to resume the prosecution.

In short, the January 6th case will not move forward while Trump is president, whether it is dismissed or not. The choice is not between dismissing the case or forcing the prosecution to immediately proceed. The choice is whether the decision to proceed will be made by a Department of Justice headed by the defendant or by a future Department of Justice with no such obvious conflict of interest. Put that way, a ruling denying dismissal does not seem far-fetched at all.

I am a lifetime member of The Dispatch and had considered submitting it there–but for this piece, The Bulwark seemed like a more natural fit. I am a fan of many of the writers and podcasters at The Bulwark and am happy to have my debut there. Hope you enjoy it.

[guest post by JVW]

I guess I’m on a roll with stories from the Dog Trainer [Note: I’m drafting this one and the one on Chevron leaving California on Friday night while everyone argues in the Weekend Open Thread. It’s high time I start showing up around here.] I saw this story published on Friday which in may ways melted my cold, cold heart.

Since police arrested her twice this spring at UCLA — accusing her of failing to obey orders to leave pro-Palestinian encampments — Asil Yassine has spent the summer navigating court dates and uncertainties.

No criminal charges have been filed in one case, although it has not been dismissed. In the other, an arraignment is coming up in late August. The consequences of her arrests are piling up.

Yassine was temporarily banned from campus and could not attend her graduation, where she would have received a doctorate in human development and psychology. The university placed holds on her records and she still has not received her diploma. Without proof of her degree, her work this summer at a psychology office won’t count toward her license.

So ironic from the generation which popularized the acronym FAFO, used in the title of this post. It’s almost as if that concept applies to them every bit as much as it does to their antagonists, which must have come as quite the surprise to the heroic (in their own minds) young darlings. Anyway, more woe unto them:

Many students have already seen charges dismissed. But cases remain unresolved for hundreds of people at campuses with the highest numbers of arrests, according to an analysis of data gathered by The Times, the Associated Press and other newsrooms that partnered in the research.

About three months since 231 UCLA protesters were arrested, most on misdemeanor charges, the Los Angeles city attorney’s office has not received referrals involving those cases, a spokesman said. The city attorney typically handles misdemeanor charges. There is a one-year period in which charges can be filed in misdemeanor cases.

I’ll have a great deal of respect for the city attorney’s office if they let some of these little twerps stew for a year wondering if any when charges will be filed, especially if they end up filing them at the last minute. Meanwhile, spare a thought for the poor young campus radical facing increasing, uh, peril:

Along with the legal limbo of those arrested, many students face uncertainty in their academic careers as they confront confidential university disciplinary proceedings.

Some remain steadfast, saying they would have made the same decisions to protest even if they had known the consequences. Others have struggled with the aftermath.

“For me, the process with the university has been the hardest,” said Yassine, who was among 206 people arrested for failure to disperse on May 2, less than two days after vigilantes attacked the UCLA encampment. She was also among 25 people arrested on June 10 after joining another short-lived encampment.

Yassine signed an agreement with UCLA to not violate its policies again, which lifted the hold on her records. But she still has not received her diploma or transcript.

“I don’t think the arrests will lead to charges against me but the cases are still in limbo over my head,” Yassine said. “But the degree issue will set back my license by at least six months.”

Behold the moment when a bratty little self-involved college kid learns that actions have consequences. I just can’t find it in me to have one iota of sympathy for the plight that young Dr. Yassine now faces. And of course she sees this as a matter of her free speech being abridged, ignoring the trespassing, vandalizing, menacing, violence, and destruction she and her merry band of nitwits brought to campus:

Yassine, the UCLA psychology doctoral graduate, also said she was proud of the encampments. She believes she protested for the right cause, no matter the consequences.

“I’m never surprised by the repression of speech in favor of Palestinian liberation and human rights,” she said. “That has been true since the day I was born.”

“I’ve been concerned all summer long about my cases, degree and licensing. But that issue is nothing compared to what is happening in Palestine.”

If she’s proud of her actions then she ought to be honor-bound to reject any offer of a plea bargain. But this is an election year and Los Angeles is a Democrat-dominated town, so I would expect that everything will be quietly settled and Dr. Yassine can move along with a career in human development and psychology which will probably lead her to a tenured position at some other higher education institution chock-full of leftist malcontents and lunatics like herself. And that’s how this nonsense perpetuates itself.

– JVW