Jack Smith, the federal prosecutor charging Donald Trump with possession of classified documents and defrauding America with a speech on January 6th, has asked the Supreme Court to decide if Trump can be criminally charged, although already impeached. This case could rock the country. Here is why.
Put aside the audacity of Justice charging a US citizen, here a former president and leading candidate, before knowing whether they legally could.
Put aside how these charges against Trump were constructed, built on tainted congressional hearings, a home raid that appears to test the 4th Amendment (“search and seizure”) and indifference to the 1st Amendment and political speech protections (“freedom of speech”).
Put aside the reputation of this specific prosecutor, preciously excoriated and reversed by a unanimous Supreme Court (9-0) for misapplying federal bribery statutes in order to charge a former Republican Governor.
Put aside the untenable state charges in New York and Georgia by partisan prosecutors who gained their posts on promises of politically persecuting Mr. Trump, and who consistently display considerable animosity to his politics.
Put all that aside, and instead look at the first major Supreme Court case ever decided, Marbury v. Madison (1803), for some timely guidance.
In that case lies a buried gem. If that gem is unearthed by the Court, it could become Mr. Jack Smith’s undoing, perhaps also Mr. Garland’s and Biden’s.
In Marbury, Chief Justice John Marshall ruled that a commission sealed but not delivered during the term of John Adams – who was a Federalist – could not be held up or undone by Adam’s successor, Jefferson – a Republican.
But the ruling was more important than that. It was a judicial tour de force, a giving with one hand and taking with another, resetting the nation’s course.
What Marshall did was to say that the commission was technically valid and that Jefferson was wrong not to deliver it, but also that the statute that directed delivery, the so-called Judiciary Act of 1801, was itself unconstitutional.
Thus, very cleverly, Marshall said Jefferson would be wrong not to deliver it – if the underlying statute were constitutional – but found that statute not constitutional, letting Jefferson off the hook.
This gave Jefferson a technical win, blocking the delivery of the Adams commission, but also elevated the Supreme Court to the ultimate arbiter of “what the law is,” the constitutionality of a given statute, and its application.
In this deft stroke, Jefferson was checkmated. He could not contest a case he had technically won, since the commission was not deliverable, but he also lost big, as the Supreme Court was now the final arbiter of laws.
Fast forward to today. Jack Smith wants the Supreme Court to say whether a former president, already House impeached, can be criminally prosecuted.
This is an open legal question, never before been decided by the Supreme Court. While Richard Nixon might have been criminally indicted, he was not, since his successor, Gerald Ford, preemptively “pardoned” him, ending the discussion.
But here is the rub. The Supreme Court is (finally) being asked about the Trump cases. Jack Smith wants permission to keep prosecuting Trump since nothing in the US Constitution bars a former president from criminal liability.
But the Supreme Court could rule in a way that parallels Marbury v. Madison, giving Jack Smith what he wants with one hand and taking it with the other.
In short, they could rule that nothing in the US Constitution, including the Impeachment Clause, prevents a former president from being criminally prosecuted for acts committed in office.
They could then reach beyond that ruling, and examine the broader constitutional questions presented by this prosecutor’s novel interpretation of the statute and potential violations of the 4th and 1st Amendments in these cases.
If the High Court finds the Constitution does not bar criminal indictment of a former president, even one formerly impeached, but also finds the statute used – as in past Jack Smith cases – was wrongly applied, or violations of the 4th or 1st Amendments have occurred and are not “harmless,” the Trump cases could be tossed, entire process thrown out as unconstitutional.
If that happens, you can thank John Marshall, author of that first big opinion Marbury v. Madison, since he appropriated this exact right to the High Court.
Then think slightly harder, about what this judicially conservative Supreme Court might be saying: A transparently political case, one that misapplies federal law, violates two major provisions of the Constitution, will not stand.
But a case against a former president, even if impeached, for provable charges of violating federal statutes, such as anti-bribery, foreign corrupt practices, or racketeering laws – will stand. That president can be charged.
Now, sit back in your chair, hands behind your neck, look out the window, and consider if anyone you can think of fits that definition. Hmmmm. This could be a very interesting case. As they say, be careful what you ask for.
Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.
