Criminal law Should be Inelastic
Criminal law should be clear so that those covered by it can understand what is permitted and what is prohibited. It’s not the place for creative interpretations by the judiciary or partisan prosecutors. Jack Smith has now dropped his casesagainst president-elect Donald Trump on the grounds that a president cannot be criminally prosecuted, but there is much more that made these prosecutions untenable: They were never grounded in any fair reading of the law that Smith relied upon. The two cases involved Trump’s handling of classified material and his purported efforts to overturn the results of the 2020 election.
Trump was first indicted in June 2023 in a federal court in Miami on 37 felony counts related to mishandling classified documents that he took from the White House to his Florida home. They included willful retention of national defense information, making false statements, and conspiracy to obstruct justice. A Florida judge dismissed the case, but Smith's office had sought an appeal.
Trump was separately indicted on four felonies in August 2023 for his attempt to reverse the 2020 election results: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights.
Months before Smith moved to dismiss the cases, his prosecutions were on the rocks. In July, the Court ruled that a president has absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. Moreover, he is entitled to at least presumptive immunity from prosecution for his official acts. Since then, we learned how factually weak the case was. For example, we learned what had previously been hidden -- that he had, in fact, asked for the National Guard to be present on January 6 to prevent any possible rioting (as he had claimed) and that Pentagon leaders had deliberately delayed their deployment to the Capitol. (Something they concealed for over three years.)
WASHINGTON -- Today, the Committee on House Administration's Subcommittee on Oversight Chairman Barry Loudermilk (GA-11) released transcripts of interviews conducted by the Department of Defense (DoD) Inspector General (IG) that contradict the findings published in their January 6 report, “Review of the DoD’s Role, Responsibilities, and Actions to Prepare for and Respond to the Protest and its Aftermath at the U.S. Capitol Campus on January 6, 2021.”
In their report, the DoD IG claims that the actions at the Pentagon were “reasonable in light of the circumstances” at the Capitol on January 6, 2021. The IG also determined that “DoD officials did not delay or obstruct the DoD’s response to the [U.S. Capitol Police’s] [Request for Assistance] on January 6, 2021.” The Subcommittee’s investigation into the delayed National Guard response on January 6, including these newly obtained witness transcripts, suggest the exact opposite.
Previously concealed by the Biden-Harris Administration for over three years, these transcripts indicate that senior Pentagon officials unnecessarily delayed the DC National Guard response to the Capitol on January 6 due to “optics” concerns, and reveal that President Trump urged his senior military leaders to prioritize safety.
Following the release of these transcripts, Oversight Subcommittee Chairman Barry Loudermilk, House Armed Services Committee Chairman Mike Rogers (AL-03), and former Major General William Walker of the D.C. National Guard, released the following statements:
Chairman Loudermilk:
“The fact that an IG report can be used to manipulate a historical narrative to protect the very Department it’s tasked with overseeing is deeply concerning. The men and women of the National Guard who put their lives on the line to protect our nation deserve the truth.
"Through our investigation, we know that the National Guard was capable and ready to deploy to the U.S. Capitol at 3 pm on January 6, but their response was delayed by senior Pentagon leaders. These new transcripts prove that not only were political concerns of ‘optics’ at play on January 6, 2021, but that DoD officials continued to delay as the riot at the Capitol worsened. DoD officials also misled Congress, telling then-Speaker Pelosi at 3:19 pm that the National Guard was 'on the way.'
"It is abundantly clear that the DoD IG’s report protects a preconceived narrative to safeguard their own interests, instead of being based on facts. As we continue the critical work of our investigation, we will not waver from our goal of ensuring the American people get the full truth.”
So, not only did Trump ask that the demonstration be peaceful, he did everything in his power to keep it that way. That case should never have been brought, but in any 
fair adjudication should have been dismissed, unless you think that being a Republican deprives a president of a right to free speech.
The fate of the J6 defendants is still being considered by the District of Columbia courts, but the Supreme Court’s ruling in June of this year (Fischer v U.S.) makes clear the prosecutors erred in an overly expansive reading of the relevant criminal law. The Court simply read the statute in its clear meaning -- not the creative reading that the prosecution acted under:
Roberts explained that the general principles used to construe statutes instruct courts that “a general phrase can be given a more focused meaning by the terms linked to it.” Here, he continued, subsection (c)(1) provides several specific examples of evidence tampering that the law prohibits – such as altering a record and concealing a document. When subsection (c)(2) immediately follows those examples, he reasoned, “the most sensible inference” is that the scope of (c)(2) is limited by the examples in (c)(1). Indeed, he noted, if subsection (c)(2) sweeps as broadly as the government posits, “there would have been scant reason for Congress to provide any specific examples at all” in subsection (c)(1).
Roberts also pointed to the provision’s history as additional support for the majority’s interpretation. Until the Enron scandal, the statute only made it a crime to use intimidation or physical force, or “corruptly persuade,” someone else to shred documents. The statute did not, Roberts noted, create liability for the person who actually shredded the documents -- leading Congress to enact Section 1512(c) to “plug this loophole.” “It would be peculiar to conclude that in closing the Enron gap, Congress actually hid away in the second part of the third subsection of Section 1512 a catchall provision that reaches far beyond the document shredding and similar scenarios that prompted the legislation in the first place.”
The government’s expansive construction of subsection (c)(2) would have other effects as well, he suggested. It “would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison.”
As to the document case, U.S. District Court Judge Aileen Cannon dismissed iton the basis that Smith had never been legally appointed. Had the case proceeded, any jury would have had to consider the fact that the documents probably were declassified by the president upon leaving office, were kept in a secure place in a facility guarded by the Secret Service, that the raid on Mar-a-Lago turned up few documents that had ever been classified, and both the means by which the raid was accomplished and its efforts to prejudice a jury by photos in which pages marked ”classified” were scattered about, containing nothing at all, would have made the case a hard one to sustain.
There’s nothing particularly unique about these observations on criminal law, but I was reminded of them by the creative efforts of some to manufacture “genocide” out of a justified defensive war in Gaza. Aside from the international organizations’ antisemites, the European press comes to mind. The latest being Der Speigel.
Eli Rosenbaum, retired head of the Department of Justice’s Office of Special Investigations, details how the International Criminal Court (ICC) judges, desperate to find Israel guilty of genocide, have tripped up the International Court of Justice (ICJ ) case.
It is easy to see why the ICC’s November 21 statement almost certainly fatally wounds South Africa’s genocide case at the ICJ. Buried in that statement is this important sentence: “On the basis of material presented by the Prosecution covering the period until 20 May 2024, the [Court’s Pre-Trial] Chamber could not determine that all elements of the crime against humanity of extermination were met.” [snip] it is virtually impossible that sufficient evidence exists to prove “genocide” at the ICJ, much less at the substantially higher standard of proof applicable to final ICJ determinations that genocide has been committed.
The offense of extermination is defined in the ICC’s 1998 governing treaty -- the so-called Rome Statute -- which lists prosecutable crimes against humanity as including “extermination.” It provides that the crime “includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population…”
The ICC’s November 21 public statement doesn’t specify which element(s) of “extermination” could not be established by ICC Prosecutor Karim Khan to the judges’ satisfaction [snip] But it can be readily deduced from the description of the Israeli officials’ alleged actions [snip] that what the ICC Prosecutor failed to establish regarding the crime of extermination was the Israeli officials’ supposed “intention” “to bring about the destruction of part of a population.” [snip]
The crime of extermination obviously has much in common with the crime of genocide. Centrally, both crimes involve mass killings or other acts that target at least a part of a population for “destruction.” But to establish genocide, an additional element must be proved: the killings or other acts must have been “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” [snip]
Thus, the essential difference between extermination and lethal genocide is that only genocide requires prosecutors to prove that the intention to achieve the destruction of a part or all of a civilian population was based on the victims’ nationality, ethnicity, race, or religion, as such. Extermination, by way of comparison, requires only a showing of acts intended to bring about the destruction of a part of a population for any reason [snip]
Let us return, then, to the pending ICC and ICJ cases involving Gaza: As noted above, the ICC judges have signaled that they deem the evidence amassed for the alleged Israeli crime of extermination to be insufficient, for the obvious reason that the ICC Prosecutor has been unable to establish, even under the weak reasonable-basis-to-believe ICC arrest warrant standard, that Israeli leaders intended to destroy “a part of a population.” Barring the extremely remote possibility -- bordering on the inconceivable -- that South Africa and its co-litigants have discovered evidence that has somehow eluded the very experienced and far better-resourced staff of the ICC’s Office of the Prosecutor, genocide can’t be proved at the ICJ either, because the crime of genocide requires proof not only of an intent to destroy a part of a population (as in the crime of extermination) but also that the evidence “is fully conclusive” and that such evidence establishes that the alleged destructive intention was based on the nationality, ethnicity, race, or religion of that targeted population.
Der Spiegel highlights Canadian William Schabas, who says that Palestine “was always etched in his heart,” and equally impermissibly expands his interpretation of the law of genocide. He would erase the intent from the clear words of the law respecting genocide, which would, of course, make it meaningless -- simply a vehicle for partisan prosecutions in the same way that Jack Smith and his team played with our criminal system.
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