Hit the road, Jack

If you squint, I reckon you could see two bloody corpses that the Secret Service turned over on that roof in Butler, Pennsylvaia. It was not only twenty-year-old loser Thomas Matthew Crooks; hovering right next door is the mangled corpse of the bureaucratic monstrosity that the Biden administration has been wielding against Donald Trump. There it lies, broken and inert. 

Crooks tried to murder Trump with a AR-15. He almost did so, too. Had Trump not turned his head at the last moment — ironically, it was to look at a chart mapping the tsunami of illegal immigration swamping the country — Crooks’s bullet would have pierced Trump’s brain instead of merely nicking the top of his right ear. 

Similarly, had it not been for the slow, steady, grinding of the legal redress progress, the coordinated assault on Trump by Jack Smith, Alvin Bragg and assorted other anti-Trump jurists, judges and prosecutors would not have scotched Trump but would have killed him as a political actor.  

A few months ago, things looked grim. Trump was facing indictments in four states on a vast array of (pun alert) trumped-up charges. His accountants miscategorized payments to Trump’s former lawyer Michael Cohen. Ka-ching! Like a malign legal philosopher’s stone, that bookkeeping irregularity, at worst a misdemeanor in any sane universe, was elevated to a thirty-four-count indictment that could have sent Trump to jail for the rest of his natural life.  

That was in New York. Something similar had been unfolding in Georgia, in Florida, in Washington, DC. It looked bad. Clown judges such as Arthur Engoron and Juan Merchan imposed preposterously large fines and stifling gag orders. 

Special Counsel Jack Smith scoured the statute books for something, anything that might be seized upon and twisted to apply to Trump and his supporters. One major act of legal legerdemain came when, in the aftermath of the case against Enron, a law enacted to prevent the knowing destruction of documents to impede an “official proceeding” was dusted off and applied to hundreds of people who happened to be at the Capitol on January 6, 2021 as well as to Donald Trump.  

It was quite a carnival of legal hermeneutical hijinks that the government had going. 

But then, about a month ago, the merry-go-round began to wobble, shudder and slip off its tracks. The Supreme Court ruled that laws designed to address accounting issues and document retention applied to, well, accounting issues and document retention, not to people parading around the Capitol or (in the case of Trump) people urging supporters to make their voices heard “peacefully and patriotically.”

Presidents, like many other government officers, enjoy immunity from criminal or civil prosecution while carrying out their official duties. Trump’s lawyers pointed this out. Lower-court judges dismissed the claim. But SCOTUS said, yep, presidents do and must enjoy such immunity. Scratch another large piece of the case(s) against the former president. 

Then, yesterday, Florida federal judge Aileen Cannon ruled that Special Counsel Jack Smith was not really a Special Counsel after all. Merrick Garland, in a rush to Get Trump, had bypassed the Constitution’s requirement that such prosecutors, invested as they are with such enormous power, must be authorized by Congress, as must be the lucre to pay for their activities. Justice Clarence Thomas had already floated that idea that Smith had not been legally appointed in his concurrence on the immunity case. 

“Upon careful study of the foundational challenges raised in the Motion,” Cannon wrote in her ninety-three-page ruling, “the Court is convinced that Special Counsel’s Smith’s prosecution of this action breaches two structural cornerstones of our constitutional scheme — the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law.” 

Result? “The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution.” 

Hit the road, Jack (and don’t you come back no more).   

We have heard the word “lawfare” repeatedly in the preceding months. What that neologism means is the weaponization of the law to harass, harry and harm your political opponents.  The Prussian military theorist Carl von Clausewitz famously said that war is diplomacy carried on by other means.  

Lawfare is warfare carried on by the perversion of the legal system. The lumbering legal leviathan that the Biden administration had constructed to take out its main political opponent now looks like the Wicked Witch of the West after having been been doused with water. “I’m melting, I’m melting!” you can almost hear Jack Smith cry. 

A sweet sound of freedom it is, too.