This opinion is not an outlier among criminal prosecutors and defense attorneys. Not saying it is a majority opinion, either, but I don't knock the NYT for printing this guest opinion column.
1. I can't speak to these other speakers, but that op-ed is objectively bonkers. Basically, Goldsmith admits that no rule on this issue exists, and yet criticizes DOJ for not following it. it is criticizing the Justice Department because "The Justice Department does not believe it is violating this or any other rule" immediately after admitting that no such rule exists. There's a bunch of other bullshit about Jack Smith not explaining the need for speed (it's obvious) and then there's this kicker:
Ms. Harris also crossed a line when she described Mr. Trump in the presidential debate as “someone who has been prosecuted for national security crimes” and election interference. Some may say that since she is a political candidate, this is fair game. But she both commented on Mr. Smith’s prosecution (which could influence its outcome) and used the prosecution to hurt her political opponent and help herself in the election. The vice president chose political advantage over commitment to apolitical law enforcement.
First, that isn't actually a comment on the prosecution. It's noting the existence of that prosecution. Second, it doesn't violate any rules or norms because those rules and norms could never have reasonably extended to silence about ongoing threats to our system of government. This extreme idea of "apolitical" law enforcement is comically naive (to the point where I doubt Goldsmith believes it at all), because it has never existed and it shouldn't.
2. In general, it's flabbergasting that Goldsmith would simultaneously criticize (as he does) Smith for 1) asking the Supreme Court to rapidly dismiss Trump's immunity argument; and 2) continuing to brief the case on the schedule the Court set for him. Gee, I wonder why Smith wanted the Supreme Court to move quickly? Was it because he didn't want to be doing the trial during the 60- or 90-day window?
He says, "well, Smith could have just dropped the brief after the election," which should be the stupidest comment I've heard from a Harvard professor about the rule of law (but alas!). Every defendant would prefer to pick the time and place for his trial. But in Goldsmith's mind, only an aspiring president should have that luxury because reasons.
3. The standard should be to do exactly what Jack Smith did. Show the evidence. Would it be better if the special counsel filed a brief saying, "we've got all this evidence that Trump committed crimes, but we won't tell you until after the election." THAT is precisely the formula for election interference. That was Comey in 2016. By contrast, if DOJ says, "we've been prosecuting this for a while, and here is the evidence we plan to use against the defendant," that's the right way to go about it. If it's BS, then it will show. If it's fabricated, people should go to jail. If it's released in good faith, it's what we should want the government to do.
www.nytimes.com
