superrific
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There are two distinct issues: whether garland adequately performed his duty, and whether that performance gave us trump 2024. Let's take the first one first:
Garland's performance
1. i think it's fair to at least partially withhold judgment until we get garland's side of the story. i am assuming he will publish a book in the near future. by partially withhold, i mean that nobody should have their views solidified until hearing from the ag himself.
2. One possible reason for garland's delay was the classified records issue. The fbi was trying to get the documents back. if he appoints a special counsel, all cooperation for records return would vanish. yes, it turns out the cooperation was bullshit, but that wasn't easily knowable until 2022. now maybe retrieving the documents shouldn't have been that much of a priority. i don't think any of us can speak to that, because we don't know what was in the documents. and if the intelligence agencies are telling garland, "we need to get that stuff back," then it would be hard to second guess that.
3. The other and more likely potential reason for the delay was that garland really didn't want to prosecute j6 because he anticipated what would happen at SCOTUS. And this would be a good reason not to prosecute. I think it is incontestable that our timeline was the worst of all possible outcomes. We didn't get trump, and the supreme court elevated the presidency to quasi-monarchical status. On this theory, Garland was worried about presidential immunity, and wasn't going to go after trump until the classified records case. after they had to get a search warrant, there was no way he wasn't going to be charged. and that was when jack smith was appointed and smith had an open mandate.
Few people in the country had as much insight into the justices as garland. so if garland was concerned about avoiding this timeline, i think that a lot of people would owe garland a lot of apologies. To be clear, I do not think this explanation is even 50% likely, but I have no way of knowing and neither do any of us until we hear from the AG himself.
Did Garland's delay allow Trump to win?
No, and I don't think this is all that controversial. I'm going to leave Cannon out of it here, even though arguably she bears as much responsibility as any person anywhere. Her faults are well known.
1. it's really hard to sketch out a possible timeline under which the J6 case goes to trial, given what the Supreme Court did.
Some of that has already been stated on this thread, but there's another consideration I'd like to throw in: Roberts gave no instructions to the trial court about how to distinguish official from unofficial duties. the key pages are 17-21 on the pdf copy downloaded from the scotus website. first, he writes that it's a very hard question. then he spends a few paragraphs telling us what considerations are not sufficient to establish that the conduct was unofficial. Sometimes courts do that: explaining to a lower court how to determine whether X is the case, they give some examples of things that aren't X. But then, almost always, that's followed by some positive guidance about things that would establish X. that latter part is almost entirely absent.
The only sensible reading of the opinion, in my view, is that the Court offered no guidance to Chukan because they didn't know what Jack Smith had. If they said, A, B and C establish that the act was unofficial, and it turned out that Jack Smith had A, B and C, then they would have painted themselves into a corner. So instead, they said nothing. Then, whatever Smith would come back with, would be deemed not enough. Just barely not enough. There would be one fact, if present, could have bolstered the non-official argument but alas that fact just wasn't there.
Note also that the Supreme Court said that the burden of proof was on the government. That is not how affirmative defenses ever work, and it absolutely should be the defendant's burden to prove that his conduct was official. So what they did makes no sense from a legal perspective (note that, to their concern about the president not having to answer for his deeds, they could have adopted a burden shifting framework). But it does make sense from a cover-their-asses perspective. Now they can have their cake and eat it. Even if Jack Smith did make a strong showing, they can always say, "it's powerful evidence, but overcoming the presumption of immunity requires more."
2. Once it's concluded (from what I consider to be strong circumstantial evidence) that the Court had no interest in the prosecution moving forward, then we have our answer. The Supreme Court has infinite potential to delay, and even if they ran out of delay, they could just say, "evidence was insufficient to overcome the presumption."
Thus does the responsibility fall squarely on SCOTUS and Cannon and nobody else. You could splice DNA from Clarence Darrow, Thurgood Marshall, Perry Mason and Jack McCoy to make the biggest, baddest lawyer the world has ever known and it wouldn't matter because the Supreme Court does what it wants. The idea has been that the Supreme Court wants to make good law. Ah ha ha, how quaint. Most law school grads want to believe that's at least a little true, which accounts for the phenomenon of, "sure SCOTUS plumbed the depths before, but surely they won't go THIS low." I tend to be cynical, but I believed at least a weak version of that. It's hard to operate as an attorney with the presumption that ultimately the law doesn't matter because we have rule by 6 in black robes. But now there's really case to make on that front. SCOTUS does what it wants, and the law only matters as a tie breaker.
Garland's performance
1. i think it's fair to at least partially withhold judgment until we get garland's side of the story. i am assuming he will publish a book in the near future. by partially withhold, i mean that nobody should have their views solidified until hearing from the ag himself.
2. One possible reason for garland's delay was the classified records issue. The fbi was trying to get the documents back. if he appoints a special counsel, all cooperation for records return would vanish. yes, it turns out the cooperation was bullshit, but that wasn't easily knowable until 2022. now maybe retrieving the documents shouldn't have been that much of a priority. i don't think any of us can speak to that, because we don't know what was in the documents. and if the intelligence agencies are telling garland, "we need to get that stuff back," then it would be hard to second guess that.
3. The other and more likely potential reason for the delay was that garland really didn't want to prosecute j6 because he anticipated what would happen at SCOTUS. And this would be a good reason not to prosecute. I think it is incontestable that our timeline was the worst of all possible outcomes. We didn't get trump, and the supreme court elevated the presidency to quasi-monarchical status. On this theory, Garland was worried about presidential immunity, and wasn't going to go after trump until the classified records case. after they had to get a search warrant, there was no way he wasn't going to be charged. and that was when jack smith was appointed and smith had an open mandate.
Few people in the country had as much insight into the justices as garland. so if garland was concerned about avoiding this timeline, i think that a lot of people would owe garland a lot of apologies. To be clear, I do not think this explanation is even 50% likely, but I have no way of knowing and neither do any of us until we hear from the AG himself.
Did Garland's delay allow Trump to win?
No, and I don't think this is all that controversial. I'm going to leave Cannon out of it here, even though arguably she bears as much responsibility as any person anywhere. Her faults are well known.
1. it's really hard to sketch out a possible timeline under which the J6 case goes to trial, given what the Supreme Court did.
Some of that has already been stated on this thread, but there's another consideration I'd like to throw in: Roberts gave no instructions to the trial court about how to distinguish official from unofficial duties. the key pages are 17-21 on the pdf copy downloaded from the scotus website. first, he writes that it's a very hard question. then he spends a few paragraphs telling us what considerations are not sufficient to establish that the conduct was unofficial. Sometimes courts do that: explaining to a lower court how to determine whether X is the case, they give some examples of things that aren't X. But then, almost always, that's followed by some positive guidance about things that would establish X. that latter part is almost entirely absent.
The only sensible reading of the opinion, in my view, is that the Court offered no guidance to Chukan because they didn't know what Jack Smith had. If they said, A, B and C establish that the act was unofficial, and it turned out that Jack Smith had A, B and C, then they would have painted themselves into a corner. So instead, they said nothing. Then, whatever Smith would come back with, would be deemed not enough. Just barely not enough. There would be one fact, if present, could have bolstered the non-official argument but alas that fact just wasn't there.
Note also that the Supreme Court said that the burden of proof was on the government. That is not how affirmative defenses ever work, and it absolutely should be the defendant's burden to prove that his conduct was official. So what they did makes no sense from a legal perspective (note that, to their concern about the president not having to answer for his deeds, they could have adopted a burden shifting framework). But it does make sense from a cover-their-asses perspective. Now they can have their cake and eat it. Even if Jack Smith did make a strong showing, they can always say, "it's powerful evidence, but overcoming the presumption of immunity requires more."
2. Once it's concluded (from what I consider to be strong circumstantial evidence) that the Court had no interest in the prosecution moving forward, then we have our answer. The Supreme Court has infinite potential to delay, and even if they ran out of delay, they could just say, "evidence was insufficient to overcome the presumption."
Thus does the responsibility fall squarely on SCOTUS and Cannon and nobody else. You could splice DNA from Clarence Darrow, Thurgood Marshall, Perry Mason and Jack McCoy to make the biggest, baddest lawyer the world has ever known and it wouldn't matter because the Supreme Court does what it wants. The idea has been that the Supreme Court wants to make good law. Ah ha ha, how quaint. Most law school grads want to believe that's at least a little true, which accounts for the phenomenon of, "sure SCOTUS plumbed the depths before, but surely they won't go THIS low." I tend to be cynical, but I believed at least a weak version of that. It's hard to operate as an attorney with the presumption that ultimately the law doesn't matter because we have rule by 6 in black robes. But now there's really case to make on that front. SCOTUS does what it wants, and the law only matters as a tie breaker.
