Advice for special counsel

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To the Editor:

I was a career prosecutor for 17 years in Southeastern Pennsylvania, where I tried every kind of criminal case, including the successful prosecution of John duPont, the richest person ever convicted of murder in the U.S. I am currently an attorney who represents individuals with disabilities throughout Southeastern Pennsylvania. I taught criminal justice, criminal law, and public administration as an adjunct at Villanova and Immaculata Universities for more than 30 years.

This is some advice for Jack Smith from a longtime state prosecutor:

As President-elect Trump prepares to fire Special Counsel Jack Smith (or Smith may pre-emptively resign) and direct his new attorney general to dismiss all federal charges against him, two pillars of American criminal law come uppermost to mind. The first is, “No man is above the law.” The second is, “No man may be judge and jury of his own case.“ The fact that Donald Trump will be placing his hands squarely on the scale of justice for his benefit in his own case is unprecedented in American legal annals, and is fundamentally appalling for the very reason that those two quotes are bedrocks of our American criminal justice system.

But destroying or ignoring settled law and time-honored norms of our established judicial system are not new approaches for DJT. He has already announced that he will be a “dictator on day one,” and expressly called for “the termination of all rules, regulations, and articles, even those found in the Constitution,” when it suits him. This is why his own handpicked chairman of the Joint Chiefs of Staff called him “a fascist to the core.” But what matters now in the scope of the pending federal prosecutions against the president-elect is that they be fully and finally addressed within our criminal judicial system, which most importantly includes both federal crimes, where Trump can arrogantly order these charges to be dismissed, and state crimes, where he has zero authority.

Jack Smith has served for many years as a federal prosecutor. I served for over 17 years as a state prosecutor, handling every type of crime imaginable. While one would think that an experienced prosecutor like Jack Smith needs no advice from an experienced state prosecutor, the two systems collaborate far too infrequently, and often know very little about one another’s laws and practices. This is counterintuitive, to be sure, but still very true.

An issue that is being overlooked far too blithely in assessing the future of Trump‘s federal criminal cases in Florida (stealing, maintaining, and disclosing sensitive, confidential, classified documents that endangered American lives and security) and in Washington, D.C. (the creation, instigation, and direction of an insurrection upon the U.S. Capital on Jan. 6, 2021, to overturn an election and the formal declaration of a new president) is that these crimes also involve clear criminal conduct, which is fully prosecutable in state courts, albeit with different crime names and procedures. And they are prosecutable in not just one state court, but because of the nature of Trump’s conspiracies and use of interstate transportation and communication to transport documents and create conspiracies with others across the nation, these crimes are also fully prosecutable in states from Florida to New Jersey to New York, and across the continent to California. It is for this reason that Jack Smith has not only the option, but the prosecutorial duty to collect the evidence in these cases and transmit it (with approval of grand jury judges as necessary) to every potentially relevant state prosecutor.

 

Dennis C. McAndrews 

Edgartown