Patterico at The Bulwark: Trump May Not Be Able to Dismiss His Federal January 6 Case
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.
If you enjoyed the piece but want more meat on the bone, there is a lot more detail in my Substack piece.
Patterico (18519b) — 8/6/2024 @ 11:51 amYou’re spreading yourself thick, Patterico. Congratulations on getting published at The Bulwark.
norcal (5e2cd0) — 8/6/2024 @ 11:57 amTLDR: (well I did)
If he’s elected, justice delayed is justice denied? Sort of, if what Trump wants is to be a corrupt president (again), he’s getting what he wanted, he’ll pardon himself, Vance pardon’s him if he wins, or he gets Vance to take over the evening of the last day and pardon him if Vance lost.
Whether that stands or not, will not matter much at that point. The speedbumps have climbed into the high foothills, Trump will pass out of this world without any movement.
Heck, if Vance would win, Trump would be in his 90’s at that point, so he wouldn’t even know, if he wasn’t creosote by then.
Colonel Klink (ret) (96f56a) — 8/6/2024 @ 12:26 pmI have a question about tolling. In the NY payoff case, it seemed like the statute of limitations had expired while Trump was president. If a prosecution is barred by his position, shouldn’t the statutory time limits be tolled while he is in office?
Kevin M (a9545f) — 8/6/2024 @ 1:19 pmHey Kevin M,
The statute of limitations applies only to filing. The case has been filed so there is no problem.
Patterico (d62ec2) — 8/6/2024 @ 3:23 pmOh. Fine.
Kevin M (a9545f) — 8/6/2024 @ 3:27 pmThe statute of limitations applies only to filing. The case has been filed so there is no problem.
Patterico (d62ec2) — 8/6/2024 @ 3:23 pm
It’s similar to applying for adjustment of status to that of permanent resident in the U.S. One can be on the very last day of a six-month period of admission on a tourist visa. As long as the application for a green card is filed before the time expires, that person will not accumulate any unlawful presence in the U.S., even if it takes years to decide the application. In many cases, USCIS will even give permission for the applicant to leave the U.S. and return to resume the application.
norcal (5e2cd0) — 8/6/2024 @ 3:55 pmAlready loved the The Bulwark.
Already loved your (much longer) Substack piece.
Put them together, what’s not to love? It’s a #NeverTrump Reese’s Peanut Butter Cup.
lurker (c23034) — 8/7/2024 @ 11:11 amIt’s a #NeverTrump Reese’s Peanut Butter Cup.
lurker (c23034) — 8/7/2024 @ 11:11 am
😁
norcal (070ad3) — 8/7/2024 @ 1:20 pmI read and learned from both articles. Ditto #8.
DRJ (b54ddf) — 8/8/2024 @ 10:59 amReading The Bulwark article is informative but, as a subscriber to your Substack, reading that article is invaluable. It provides the details that courts and lawyers will require in deciding these issues. It is important for lawyers and laymen that care about our legal system and want to understand how it works/should work.
DRJ (b54ddf) — 8/9/2024 @ 1:07 pmYeah, I assume the Bulwark piece was targeted to a more general, non-lawyer audience. A link back to the Substack article would have been informative for those capable of navigating deeper legal waters. Would a link to the Substack have been bad form from a guest contributor? They let him link to this blog. I don’t know.
lurker (c23034) — 8/9/2024 @ 6:26 pm