Constitution in Crisis #6: Playing a Bad Hand Well

Jack Smith filed motions yesterday to dismiss the two federal cases he and his team at the DOJ have painstakingly put together over two years. They have defended these cases against spurious Trump attacks, a hostile and lawless District Court, a fairly mind-boggling Supreme Court opinion on presidential immunity, and many other bumps in the road. Throwing the two cases away must have felt like Miriam putting Moses in the Nile.

But Smith has made the best of a very bad hand dealt by this crazy concatenation of forces, culminating in Trump’s victory. Given the cards he had to play, he’s played them smartly. Even as Trump escapes punishment—a foregone conclusion as of November 5—Smith has left Trump in a position far from the fully triumphant one he believes he deserves.

Smith wisely began this process in the DC District Court before Judge Chutkan. His six-page motion scored some important points. Trump will try to erase them when he takes office, but it’s not clear that he can.

First, Smith made it clear that the government had lost no confidence in the charges against Trump: “The government’s position on the merits of the defendant’s prosecution has not changed. But the circumstances have: as a result of the election...” He again stated for the record that the Department of Justice stands behind the extremely serious charges in the case—surely the most scathing charges ever leveled at a president.

https://harrylitman.substack.com/p/constitution-in-crisis-6-playing