Trump trying to rewrite history in battle to bury Smith
report, legal experts say
Ex-prosecutors alarmed
by attempt to hide 2020 election subversion effort and by pledge to pardon
January 6 rioters
Peter Stone in Washington
Wed 15 Jan 2025 08.00 EST
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Donald Trump’s desperate legal battles
to block a damaging special counsel report about his efforts to subvert his
2020 election loss and his sentencing for a 34-count felony conviction in New
York ultimately failed, but former prosecutors say they nevertheless reveal his
continual disdain for the rule of law and his penchant for rewriting history.
One area where that may imminently
play out, as Trump prepares to return to the White House, is with his repeated
pledge to issue “major pardons” to participants in the 6
January 2021 assault on the Capitol in Washington.
Trump and many of his allies have
repeatedly sought to rewrite the events of January 6 as merely an enthusiastic
protest by patriots, rather than an attempt to prevent Joe Biden’s legitimate
election win being certified, underscoring Trump’s aversion to truth telling
about the insurrection, critics say.
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With Trump poised to take office, his
lawyers scrambled in vain – and lost – an appeal to the supreme court – to stop
a New York judge from sentencing him on 10 January
with no penalty for falsifying records to hide $130,000 in hush-money payments
in 2016 to a porn star who alleged an affair with him, making Trump the first
felon to be elected president.
Trump’s lawyers have spent days
battling aggressively in the courts – with some success thus far – to halt the
release of a two-part report by the special counsel Jack Smith detailing
federal charges relating to Trump’s moves to thwart his 2020 defeat, and
charges that Trump improperly took a large cache of classified documents with
him after he left office.
A Florida federal judge appointed by
Trump blocked the release of Smith’s report on both federal cases for days, but
on Monday dropped her objections to the justice department releasing Smith’s
report on Trump’s drive to overturn his 2020 defeat.
The department’s Tuesday release of
that report dealt a major rebuke to the incoming president. Smith stressed that
his office remained “fully behind” the prosecution’s merits, and its belief
that it would have won the case if it went to trial as originally intended last
year.
Although the 137-page report contained
few new details, it provided a strong historical account of Smith’s two-year
investigation, which included grand-jury testimony from over 55 witnesses and
voluntary interviews with more than 250 individuals, and stressed Trump’s
multiple attempts to illegally thwart his loss.
The report highlighted Trump’s
repeated promotion of “demonstrably and, in many cases, obviously false”
assertions about his 2020 election loss, which were integral to Trump’s
pressure tactics and which helped fuel the January 6 attack.
Smith stressed that “but for Mr
Trump’s election and imminent return to the presidency, the office assessed
that the admissible evidence was sufficient to obtain and sustain a conviction
at trial”.
Trump, who has repeatedly denied all
the charges, condemned Smith at 2am on Tuesday on Truth Social as a “lamebrain
prosecutor who was unable to get his case tried before the election”.
The case was slated for trial last
year but short-circuited by a much criticized supreme court ruling that barred
prosecutions for a president’s “official acts”. It was dropped after Trump’s
election victory, since sitting presidents cannot be prosecuted.
The justice department’s release of
the election subversion report by Smith, who resigned – as was expected – as
special counsel on Friday, days before Trump takes office, is seen by legal
experts as important for the historical record by summing up the election
subversion case against Trump.
On another legal battleground, Trump
has pledged that in his “first hour” in office he will make “major pardons” for
some of the 1,500 January 6 insurrectionists – who he has called “patriots” –
charged in the Capitol attack, despite strong concerns from legal experts that
such pardons would hurt the criminal justice system. According to the US
justice department, about 1,000 people have pleaded guilty to felonies or
misdemeanors.
Legal critics worry, too, about
potential violence and damage to the rule of law spurred by Trump’s drumbeat of
dangerous threats to exact revenge against political foes, including Smith and
the former congresswoman Liz Cheney, who led a House panel’s hearings into the
Capitol attack.
Trump has repeatedly called the
federal and New York cases against him “witch-hunts” and examples of “lawfare”
that he portrays in conspiratorial terms as politically driven by Democrats.
But ex-prosecutors and legal scholars
say Trump’s legal gymnastics to block his sentencing and Smith’s election
subversion report, plus his promised pardons and talk of revenge, undermine the
rule of law and are desperate attempts to rewrite history to avoid public
stigmas.
“It is often said that we are a nation
of laws and not men,” said Barbara McQuade, a former federal prosecutor for
Michigan’s eastern district who now teaches law at the University of Michigan.
“Trump seems to want us to be a nation of one man – Trump.”
McQuade added that what happens with
“pardons for the Jan[uary] 6 defendants, Smith’s report on Trump’s retention of
classified documents, and Trump’s call for revenge prosecutions will reveal
whether the rule of law maintains its integrity”.
McQuade cautioned: “By promising to
pardon the Jan[uary] 6 defendants and framing as wrongdoers the law enforcement
officials who investigated him, Trump is attempting to rewrite history. As his
former attorney general, William Barr, so cynically put it: ‘History is written
by the winners.’”
Other former prosecutors concur that
Trump has a long track record of retaliating against political critics.
“Trump’s narcissism compels him to
attack anything or any person who portrays him negatively,” said Ty Cobb, a
former justice department official who worked as a White House counsel during
Trump’s first term. “Trump is all for transparency when it comes to the conduct
of his enemies, but obstructs transparency in any form when it applies to him.”
Other justice department veterans have
raised concerns about the dangers to the judicial system posed by Trump’s drive
to block the release of Smith’s report and his New York sentencing.
“We shouldn’t be surprised at the
unrelenting efforts by Trump to escape accountability for his conviction in the
New York case,” said the former justice department inspector general Michael
Bromwich. “That is what he does. But it is nothing short of mortifying that he
came within one supreme court justice of nullifying the New York verdict.”
Bromwich said that the release of
Smith’s election subversion report is “a pale substitute for a public trial,
but a form of political and historical accountability”. Ironically, he noted
that a few of Trump’s lawyers who “tried to bury the report of the special
counsel” have been tapped by Trump for top posts in his justice department,
where their jobs “will be to defend the special counsel regulations. Their
arguments should be an interesting line of questioning during their
confirmation hearings.”
Critics notwithstanding, Trump has
launched withering personal and political attacks against the New York judge
who sentenced him, and against Smith.
Although Juan Merchan only sentenced
Trump to “unconditional discharge” with no jail time or probation, and allowed
him to appear remotely at the hearing, Trump trashed the whole case against
him.
“It was done to damage my reputation
so I would lose the election, and obviously that didn’t work,” Trump said.
A week earlier, when Merchan announced
the 10 January sentencing date, Trump lashed out, calling him “corrupt”, on his
Truth Social platform, despite recent strong public warnings from the supreme
court chief justice, John Roberts, who, without mentioning Trump, decried
mounting threats against judges and the judicial system.
And in apocalyptic fashion, Trump said
the judge’s decision to sentence him “would be the end of the presidency as we
know it”.
In a similarly conspiratorial and
false vein before the release of Smith’s election subversion report, Trump
attacked him on Truth Social last weekend, writing that “deranged Jack Smith
was fired today by the DoJ”. Trump later endorsed and expanded an online post
stating Smith should be “disbarred” and “ indicted”.
Such attacks have prompted legal
critics to sound more alarms about Trump’s repeated threats to seek retribution
against his political foes and to issue large-scale pardons when he assumes the
presidency.
“It is a fundamental principle of our
criminal justice system that we do not prosecute for the purpose of
retribution,” said the former federal judge John Jones, who is now the
president of Dickinson College. “Nor should charges be brought selectively,” stressing
that these are “bedrock precepts”.
Likewise, Jones defended the fairness
of the legal system that has led to 1,500 convictions and guilty pleas by
January 6 defendants.
“Those who were prosecuted were given
almost excessive due process,” he said, adding that blanket pardons would
“signal to future insurrectionists that they can engage in violence impeding
the operation of the government with impunity”.
Legal watchdogs, too, are concerned
about Trump’s promised pardons.
“President Trump’s plan to pardon the
January 6 attackers signals his intent to abuse his power. Pardoning loyalists
for political violence is an action of an autocrat serving his own ends,” said
Adav Noti, the executive director of the non-partisan Campaign Legal Center.
Similarly, Bromwich warned of serious
fallout if Trump “follows through on his pledge to pardon the January 6
insurrectionists, including those who assaulted police officers. If he does, it
will be the most consequential abuse of the pardon power in American history.
“All the work of prosecutors, agents,
judges and juries who were involved in those legitimate prosecutions will be
for nought. Justice department officials who stand for the rule of law should
do everything in their power to prevent it.”
The former federal prosecutor Daniel
Richman, who now is a law professor at Columbia University, said he saw public
benefits with Trump’s sentencing and the release of Smith’s election subversion
report.
Richman said both “will be markers for
history. Trump is now a convicted felon, the first to serve as president. And
Smith’s report has laid out an account of criminal wrongdoing that only Trump’s
successful delaying tactics prevented Smith from having a chance to prove up in
court. Whether these are just time capsules or small moves toward
accountability remains to be seen.”
