Special Counsel Smith's Report on Trump's Interference in the 2020 Election

David Sklansky: As of this point well over 1,000 people have been convicted of offenses, but the criminal prosecution of Trump for his involvement is now at an end.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available. And today’s episode is actually a special episode because today marks the release of two incredibly important documents in American criminal justice.

One of them may be obvious to all of you, and we’re going to spend most of the episode talking about that, but the other is our guest today, David Sklansky, who’s the Stanley Morrison Professor of Law here at the Stanford and also faculty co director of the Criminal Justice Center at Stanford Law School, just released his book, Criminal Justice in Divided America, Police, Punishment, and the Future of Our Democracy.

Like all of David’s work, it’s both incredibly thoughtful and deeply well written and would be a wonderful and enjoyable present for anyone on your list of presents to give. The other thing that was obviously released today was Volume 1 of the Special Counsel’s report in the Donald Trump matters in which Special Counsel Jack Smith sent to the attorney general who released today the volume of his final report that deals with the DC case. And our listeners will probably remember that there were two federal prosecutions brought against Donald Trump, one in the District of Columbia, connected with the January 6th events of 2021, and the other in the Southern District of Florida, which dealt with his retention of various documents that he should have turned back to the government.

That latter case is still ongoing against the two co-defendants. And that part of the report was not released because the Attorney General found that it might cause prejudice to those defendants, although the Attorney General is seeking to release that report to the ranking members of the relevant congressional committees. But the other report, which has about 150 pages of substance, and then some various lists at the end, was released. And David is here to talk about the report with us. 

So  I guess where I want to start is: tell us a little bit about special prosecutors and how they fit into the Department of Justice.

David Sklansky: We used to have an institution in this country called the “independent counsel,” which was a lawyer who was appointed by a federal court when the Justice Department decided that their impartiality could be fairly questioned. So we had an independent counsel, for example, that investigated scandals associated with the Reagan administration and with the Clinton administration, but that law expired and in its place, the Department of Justice has pursued a policy of itself appointing special counsels when there’s reason to worry that if the Department of Justice handled something on its own, it’s impartiality could be called into question. 

So the Department of Justice appointed a special counsel to investigate Hunter Biden because, since Hunter Biden’s father was the president, it might fairly be wondered whether the Department of Justice would be impartial in investigating and prosecuting him. And the Department of Justice also appointed a special counsel, Jack Smith, to handle various investigations into Donald Trump, including the investigation into the efforts that he made to overturn the results of the 2020 election.

Pam Karlan: They also appointed a special prosecutor to investigate President Biden, right? On the retention of documents from when he was vice president?

David Sklansky: Yes.

Pam Karlan: And is it the general practice at the end of these, even if people don’t get prosecuted, to release a report?

It has been. The special counsel who investigated President Biden released a report, and the special counsel who handled the prosecution … the investigation and prosecution of Hunter Biden released his report a day or two ago. 

Pam Karlan: And the Mueller report was also a special counsel report, right?

David Sklansky: Yes.

Pam Karlan: So, what struck you about this report? Was there anything different about this report?

David Sklansky: So, I think what’s different about this report is all the controversy about whether there should be a report at all. Trump’s lawyers tried to block the release of the report, and the judge overseeing the separate prosecution that the special counsel had brought against President Trump related to his illegal retention of documents at Mar a Lago briefly ordered that no part of Jack Smith’s report could be released. She relented, and the report was released. It’s prefaced by a four-page letter from Jack Smith defending the integrity of his investigation and describing what he did. It’s followed by a letter from Todd Blanche who will soon be overseeing the day-to-day operation of the Department of Justice, but figures here, because he’s Trump’s lawyer in this case. This  letter objects to the release of the report. And then there’s a response to that letter from Jack Smith. So, the letter from Todd Blanche is there because Blanche and his associates were given an opportunity to review the report and raise objections before it was released. And they reviewed it and sent a letter to the Attorney General. The letter doesn’t challenge any of the factual ….

Pam Karlan: No, it just seems to be “you shouldn’t release the report,” not that “you say things in the report that are untrue.”

David Sklansky: That’s right. It’s all about whether the report should be released, and it’s an argument that the report shouldn’t be released, and Smith responds to that. So, I think that for anybody who hasn’t been reading earlier filings by Jack Smith’s office, it’s very informative to read the evidence that Smith has assembled. It explains why these charges were brought against President Trump and why Smith and his lawyers were confident that they would prevail at trial. And the evidence that they had that they thought supported the charges. And there’s a lot of it… But for people who have read that earlier stuff, I think what’s really interesting here is the debate about whether the report should even be released and the tenor of Blanche’s letter attacking the idea of releasing the report.

Pam Karlan: Yeah, so I … one of the things that reading the report as you say, if you’ve been following the case all along and if you followed, for example, the House Select Committee and its work, there wasn’t a lot surprising factually in this report. I mean, one of the things that struck me is if you look at the footnotes in a huge number of places, the source for a particular, you know, obviously they did hundreds of interviews and like but a lot of the sources are also things that came from the House Select Committee and the like, and so one of the things that I sort of wondered about is why it took till 2022 to appoint a special counsel since much of this stuff was known on January 6th, 2021.

David Sklansky: That’s a fair question. And it’s a question lots of people have asked. It, it, there, it’s … people have asked not just why it took so long to appoint a special counsel but why the investigation up to that point was so slow. Because the reason that the Department of Justice gave for appointing a special counsel at that point was that that was the point at which it became clear that Trump was running for reelection.

Pam Karlan: But he, he, but he had created a re-election committee to raise money sometime in tween in the winter of 2021, right?

David Sklansky: Yeah. So there were grounds for appointment of a special counsel earlier. But one thing that happened when Smith was appointed is not just that a degree of insulation was created between the attorney general in this investigation, which [ ]  previously existed. It’s also that the investigation started to move much, much faster because Smith just worked in a more disciplined and aggressive way than the investigation had been working beforehand. And we don’t know why that was. We don’t know to what degree it reflected ambivalence within the Department of Justice about whether these prosecutions should be aggressively pursued, or how to think about them.

But it does sit a little oddly with the aggressive efforts that the Department was making from the outset to prosecute other people for activities in connection with January 6th.

Pam Karlan: Yeah, I mean, they’ve prosecuted hundreds of folks who were there on the ground at the Capitol. They prosecuted a couple of people who weren’t at the Capitol, but who were involved in whipping up the crowds that stormed the Capitol.

David Sklansky: Yeah, and convicted well over a thousand of those people. So, the fate of those convictions is now in question. Trump has said that he intends to pardon many, if not all, of the January 6th defendants. We’ll see what he does in that regard, but as of this point well over a thousand people have been convicted of offenses.  But the criminal prosecution of Trump for his involvement is now at an end.

Pam Karlan: Well, and the criminal prosecutions of the five unidentified in the public release document, co-conspirators also, are those over as well as the Trump prosecution?

David Sklansky: Yeah I mean…

Pam Karlan: Those people were not yet charged, right?

David Sklansky: Correct. Some of them may be people who were charged in the Georgia election.

Pam Karlan: Yeah, I mean, you could kind of tell that because it’s obvious who at least I think three or four of the five are.

David Sklansky: Yeah, but I think it’s clear that that prosecution is not going to move forward at this point. Smith has resigned. Trump is going to take office. Todd Blanche is going to be running the day to day affairs at the Justice Department.

Pam Karlan: I mean, does Todd Blanche have to recuse himself from working on this, given that he represented Donald Trump when Donald Trump was a private citizen?

David Sklansky: I think there’s a good argument for him recusing himself, but the standards for recusal are notoriously vague. It’ll be up to him to decide whether or not that’s something he wants to do. But yeah, I mean, his judgment about …. his impartiality here could fairly be questioned.

Pam Karlan: So one of the things that I thought was very interesting and knew about the report was the discussion about the decision not to charge Donald Trump with insurrection. So, you know, the charges against him involve fraud, involve denial —attempted denial of individuals’ rights to vote and like. And the thing that interested me is that the denial of the right to vote count of the indictment was also very innovative. And they decided to go forward with that and not with the insurrection, not with account charging actual insurrection.

David Sklansky: Yeah, one of the oddities of this prosecution is that although it’s built around the events of January 6th, it really is a fraud case. And the allegations are all about defrauding the United States, depriving voters of their rights, conspiracy against the United States, and obstruction of justice. None of it is about violence that from the outset….

Pam Karlan: Although, although I wan … let me stop you there for a minute, which is, you’re absolutely right that none of the actual accounts are about the violence, which makes the pictures that they included in the final report interesting because they are pictures of the violence.

David Sklansky: Yeah. And from the time that these charges were filed, the special counsel’s office has tried to have the violence of that day be part of the case. The main theory that the indictment used for this purpose was to suggest that Trump made use of the violence of January 6th to further his fraudulent efforts to fraudulently overturn the election. And as the case proceeded, I think the special counsel’s office talked more and more about the violence. And there clearly were lots of discussions within the special counsel’s office that continued throughout the case about how much to make of  the violence in the case because for many people, I think the worst thing Trump did, which is saying a lot, the worst thing that he did was to try to incite a violent insurrection to overturn the results of a lawful election.

And that was …  he was never charged criminally with that. The Georgia case didn’t center on that. The Georgia case was also a fraud case. And in the special counsel’s case, although there’s a lot about the violence, the charges are not ultimately about the violence.

Pam Karlan: Yeah, it was interesting in reading that part of the report that part of what seemed to be going on was some uncertainty about whether it’s actually an insurrection to try to stop the transfer of power from a legitimate government, because insurrection requires going against the existing legitimate government. And that, that struck me as a really interesting and, and tricky issue.

David Sklansky: It is an interesting and tricky issue, but I agree with you, Pam, that there are also interesting and tricky issues associated with the use of the statutes that the special counsel’s office did decide to rely on in this case.

I think Jack Smith is right that if this case proceeded to trial, he very likely would have obtained a conviction. The uncertainties associated with the case have to do with what would happen on appeal, particularly in the Supreme Court once the lega … , once the quite legal question was raised about whether these statutes properly extend to conduct which they haven’t been used against before because we haven’t seen something like this before.

Pam Karlan: Yeah. Yeah. And of course, the, the, the …  in addition to the delay at the front end of the case with getting the special prosecutor in there and getting him up and running, there was huge delay at the back end caused by the Supreme Court in large part, which is the Supreme Court could have taken this case and resolved the question of presidential immunity much earlier than it did. And by the time the Supreme Court decided its decision on the presidential immunity….  and a decision that I think we’ve talked about and that I think clearly got things wrong, it was so late that it was virtually guaranteed that if Donald Trump managed to get elected, there would be no prosecution.

David Sklansky: I think that’s right and if Donald Trump hadn’t been elected, if this case had proceeded the way in which the Supreme Court decided the immunity issue, would have created additional delays.

Pam Karlan: Yeah, I mean, I assume it would have gone back up there yet again on immunity before a trial because of the way they talked about the evidentiary issues.

And what is inside and outside the boundaries of the president’s official conduct.

David Sklansky: Yeah, and that, that’s the part of the immunity decision that also briefly slowed down the sentencing in the New York case. It’s a … we’ve talked about this before, but it’s a small part of the Supreme Court’s opinion, but it accounts for a disproportionate share of the confusion that that opinion created.

The immunity decision, in addition to saying that the president can’t be prosecuted for certain things that have to do with his core presidential duties, also says that the prosecutors can’t use evidence having to do with the president exercising his core constitutional duties to prosecute him for other things.

And it’s very, very hard to figure out any way in which it … to make sense of that. And Smith’s report … I spend some time towards the backend talking about the uncertainties that were created by that part of the Supreme Court’s opinion.

Pam Karlan: Yeah, I’d like to step back a little bit now from the special counsel’s final report and talk about the other important publication from today, which is your book, Criminal Justice in Divided America, Police Punishment and the Future of Our Democracy, and ask how the themes and issues you focus on there play out in the various prosecutions of Donald Trump?

David Sklansky: Yeah. So it’s easy to look at the prosecutions of Donald Trump and think, okay, so criminal justice has nothing to do with saving American democracy. People who put their hope in the criminal justice system as a way to protect America against further sliding toward authoritarianism were mistaken and disappointed. And if we… If you want to protect democracy, think about things other than criminal justice. And it’s certainly true that there are people who are concerned about democracy now have lots of things to attend to other than criminal justice. But I do think that failures of criminal justice have a lot to do with the crisis of democracy in the United States today. And the book is an effort to talk about why that is.

Pam Karlan: And do you think the prosecutions of Donald Trump will lead to even more distrust in the criminal justice system? That is, he keeps claiming the criminal justice system is weaponized, but he also claims he wants to weaponize the criminal justice system against his political opponents. I mean, the person he’s nominated for the head of the FBI has a list of people he’s already announced he wants to go after. Where does this leave criminal justice in our democracy?

David Sklansky: Yeah, well, there are two paths that lead from here. One is that it leads to further unraveling of trust in institutions and in the rule of law. And the way we go along that path is the Trump Department of Justice takes the position that “since the Democrats didn’t seem to care about following rules, we need to fight fire with fire and all these nice-sounding principles are really just masks for liberals to exert their will, and we need to stand up for what we believe in and that means using prosecutorial power to do what we want to do and unleashing the police to do what we want to do.”

And if we go down that path, there will be a spiral of escalating disillusionment and cynicism about government and the rule of law. 

The other path that could proceed from here is people on the right who believe that the justice system has been unfairly politicized joining with people on the left who are concerned for their own reasons about the misuse of prosecutorial power and police power, and produce …  work together to build new systems and new procedures and rules to rein in prosecutorial power, to tame prosecutorial power through the rule of law, and to revive the community policing movement.

I’ll say one thing that struck me as poignant about the Smith report and about the Weiss report, which is the report by the special counsel appointed to investigate and prosecute Hunter Biden, which came out a day or so earlier: Both of these reports start with letters from the special counsel—David Weiss in one case, Jack Smith in the other case—defending the work of their office and talking about how their North Star has been the principles of federal prosecution, which are a set of rules that were written in the early years of the Carter administration, under Attorney General Civiletti in response to the unraveling of trust in the rule of law during the Nixon administration.

So the good path from here involves something like that. Some effort by people on both sides of the political spectrum to step back and to say “we all have an interest in ensuring that the rule of law is followed. And we need to figure out ways to protect against the abuses that one side fears and the abuses that the other side fears.

Pam Karlan: Yeah. I mean, I think you think back to Benjamin Civiletti on the Democratic side and Edward Levy on the Republican side as people who really thought that criminal prosecution decisions in the Department of Justice in particular should really be made without any political input beyond the sort of high-level policy of “this administration is going to focus more on you know, economic crimes than drug crimes,” or “this administration is going to focus more on street crime and less on you know, and less on immigration crime or whatever.”

And do you think we have a possibility of going back to that at some point?

David Sklansky: Yeah, I do. And I should say Edward Levy is quoted prominently in Jack Smith’s letter at the beginning of his report. And that’s quite appropriate because Civiletti’s work really built on the work that the Justice Department had done under Levy. I do think that there’s a chance for that. Maybe not in February of 2025, bBut a lot is going to happen over the next couple of years. And I do think, and I do hope, that there will be moments when it will be possible for people to come together and say, okay, let’s step back. Let’s, let’s really try to reinforce the rule of law.  Todd Blanche’s letter, at the end of the letter that he submitted that’s included with Jack Smith’s report and that complains about the release of the report, is an interesting document because it talks about the rule of law and the need to follow the rule of law.

It makes some arguments that I think are highly unpersuasive about how illegal and dangerous it is for this report to be released during a presidential transition period, but this is not a letter that is written to be quoted in newspapers, really. It’s not a letter that reads like it was written to try to persuade Attorney General Garland, who was the one who had to make the decision to release the report. It really reads like a report that …  like a letter that’s written partly to please his client, Donald Trump, but also partly to talk to people that whose opinions he cares about, which I, I think is a group of people who are on the right and who think that the Democrats have not been faithful to the role rule of law and who purport to want to resurrect the rule of law and who may really mean it. So yes, I think, there is a possibility there for some kind of bipartisan efforts to try to restorate the rule of law through, I would, I would hope a revival of community policing and through some common sense limitations on prosecutorial power.

Pam Karlan: Yeah. I mean, I’ve, I’ve said this before and you say that you blush when I say it, but you are a beautiful writer. Probably you’re one of the two best writers ever to serve as a prosecutor. And the other one is Robert Jackson. And Robert Jackson wrote a very … gave a very famous speech, which then he published on the role of the federal prosecutor in 1940. And I highly recommend that everybody who’s listening Google Robert Jackson and federal prosecutors so you can read the speech. It should, it should come right up. The Robert Jackson center has it on its website. And you know, I think what he warned us about with federal prosecutors is the ability of a federal prosecutor to comb the law books and find at least a technical violation of some act on the part of everyone. And Robert Jackson warns against that. And I think that warning is something that really we ought to be looking at again as we move into the second Trump administration.

David Sklansky:  I completely agree. And Jack Smith quotes that speech in his letter prefacing the report as well. And that’s not surprising because that’s a speech that most federal prosecutors read and I think most federal prosecutors try to take to heart. And I do think it contains ideas that it’d be good for all of us to take to heart.

Pam Karlan: Yeah. So I want to thank David Sklansky for joining us for this special episode of Stanford Legal to talk about the release of the Special Prosecutor’s Volume 1 report on the January 6th case. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app.

Your feedback improves the show and helps new listeners to discover us. I’m Pam Karlan. See you next time.