Special Counsel Crosses the Rubicon?

That is what Andy McCarthy thinks. The Democrats desperately want to indict Donald Trump, for something–anything. They pretty clearly intended to charge him with mishandling classified documents, a chickenfeed offense under the circumstances, but that fizzled when it turned out that Joe Biden has much worse problems.

So now they are back to the mostly-peaceful protest of January 6. McCarthy thinks that Special Counsel Jack Smith’s subpoena of Mike Pence is highly significant:

The New York Times reports that former vice president Mike Pence has been subpoenaed to testify before the grand jury probing former president Donald Trump’s role in the events that led to the January 6 Capitol riot. The subpoena was issued by Jack Smith, the special counsel appointed in November by Biden administration attorney general Merrick Garland.

What’s it all about?

The criminal investigation is focused on whether Trump’s “stop the steal” campaign between Election Day on November 8, 2020, and the constitutionally mandated joint session of Congress to count state-certified electoral votes on January 6, 2021, violated federal criminal laws — among others, conspiracy to obstruct Congress and to defraud the United States.

As of January 6, Trump had a legal theory, which was supported by legal scholar John Eastman. Their theory was that Pence, as vice president, had constitutional authority over the certification of the presidential election that was not merely ministerial. Andy calls this theory “frivolous,” while I would settle for weak. OK, very weak, although no weaker than the theory that the Constitution requires legal abortion or gay marriage. But so what?

After the vice president rightly rejected the notion that he had the authority to invalidate or suspend the counting of electoral votes, Trump reprehensibly put him in physical peril by denouncing Pence in a tweet even though the Capitol was by then already under siege.

Pence is thus a direct witness to both the plan to derail Congress’s counting of the votes and the actual obstruction that occurred — delaying by several hours the completion of the vote-counting and affirmation of Biden’s victory.

I agree with Andy’s judgment that indicting Trump on January 6-related grounds would be flimsy at best:

It is a hard case to make because, in essence, the Justice Department would be arguing that a frivolous legal theory at some point transmogrified into a felony fraud and obstruction. That would be a promiscuous precedent for federal prosecutors to set — frivolous legal theories are very common, and it’s always been thought that, for the sake of promoting zealous legal defense, we should be content to rebuke such theories without criminalizing them.

A subpoena for the former vice president of the United States strongly suggests that the Justice Department is poised to go down this perilous path, and that a final decision on that score is probably nearing.

If the Democrats do choose to indict Trump, the prosecution will be venued in the District of Columbia. If the case gets to a jury, the jury will likely consist entirely of Democrats, most of them rabid Democrats. It is hard to see a D.C. jury acquitting Trump on whatever charges the Democrats ultimately bring, if they get that far. I don’t know what the timing will be. Maybe Trump will be on trial or in prison during the 2024 primary season.

It is, in some ways, an odd situation. Put aside for a moment the banana republic aspect of criminally prosecuting the loser of an election. (In Game of Thrones terms, it is “you win or you die.” Some mistakenly thought we had progressed beyond that standard.) The Democrats’ base desperately wants Trump to be indicted, but in my view, that is contrary to their interests. If Trump is indicted, still more if he is imprisoned, he won’t get the Republican nomination. But Democrats should want Trump to be the nominee, since he is the one prominent Republican who probably would lose to the decrepit Joe Biden.

For my part, I don’t want Trump indicted, still less jailed, because I cling to an ever-diminishing confidence in the integrity of our institutions.

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