Jack Smith Cannot Be Fired, DOJ Cannot Dismiss the Jan 6th Case Without Judge Chutkan’s Approval and a President Can Be Prosecuted While in Office.
As a law professor and former prosecutor, I am urging the media — specifically MSNBC and CNN — to cover certain critical legal angles of the Jack Smith possible resignation and the legal ability of Donald Trump to still be prosecuted for the January 6th attempt to overthrow the government.
The recap is: (1) Smith cannot be legally fired and so he should not resign, (2) even so, DOJ cannot dismiss the Jan 6th case without Judge Chutkan’s approval and (3) it is abundantly clear that a sitting president can be criminally prosecuted while in office.
Jack Smith Cannot Be Lawfully Fired. He can only be discharged for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” NOTE: the existing DOJ regulations were promulgated after the Independent Counsel law lapsed. DOJ lawfully enacted the regulations allowing for the appointment of a Special Counsel. The DC Court of Appeals has approved the legal authority for DOJ to do so.
The very purpose of a Special Counsel is to distance DOJ from a case in which there is a conflict of interest. Therefore, the regulations are written in a way to curtail the firing of a Special Counsel for improper motives.
Accordingly, a new Attorney General under Trump can tell Jack Smith he’s fired, but Smith can simply refuse to leave (just as Jerome Powell simply stated a few days ago; he cannot be lawfully fired by Trump and would not leave). The judge would then be faced with the DOJ seeking to intervene in the case, but they have no authority to do so without her approval. She can simply rule that Jack Smith stays on the case, that DOJ is not counsel for the government on the case and they cannot be heard (no power to file motions, etc.)
The Jan 6th Case Can Be Saved From Dismissal. Under Rule 48 of the Criminal Rules of Civil Procedure, “leave of court” (permission) is necessary for the government to seek dismissal of its own case. The leave of court language was inserted by the Supreme Court in the rulemaking process for Rule 48. If it’s not in the public interest, the court can refuse to dismiss. Just look at what the judge on the Hunter Biden case did; Judge Noreika balked at the government’s move to dismiss the gun charges. The plea bargain fell apart, the prosecution was forced to proceed and Hunter Biden was convicted on a case that the government wanted to dismiss. Lest anyone think it’s not possible, there it is, right there.
A Sitting President Can Be Criminally Prosecuted. The Office of Legal Counsel (OLC) of the Department of Justice (DOJ) wrote an opinion memo in 1974 that opines that a sitting president cannot be criminally prosecuted. However, this frequently referenced OLC memo is non-binding, merely an opinion, and by the admission of OLC, their own “opinions” are not the “policy” of the Department of Justice. They have said this in writing, in court. Note that the word “policy” has a very specific legal meaning. Thus, every time someone says the DOJ has a “policy” against prosecuting a sitting president, they are 100% legally incorrect. The DC Court of Appeals has confirmed, and the OLC itself has stated, that OLC opinions are not the “policy” of the DOJ. Thus, no such policy exists and Smith is free to proceed because he would not be violating DOJ policy (the regulations require him to follow DOJ “policies”).
Kenneth Starr (the Pres. Clinton Independent Counsel) has said publicly that a sitting president can indeed be prosecuted. He is supported by a 30-page opinion memo from a constitutional law professor. Indeed, even in 1974 the Watergate Special Prosecutor, Leon Jaworski, had a legal memorandum opining that a sitting president can be prosecuted.
The OLC 1974 memo was a political document written to scare Spiro Agnew into resigning as vice president, but then OLC needed a rationale to protect Nixon. A DOJ lawyer who was a witness at the time of the writing of the OLC opinion appeared on The Rachel Maddow Show and said as much. We also know that OLC is political and has a history of rubber stamping what a president wants to do (e.g., torture).
There are no prominent voices in this country who are willing to say that there’s no policy against the prosecution of a sitting president and that Jack Smith can proceed to prosecute Trump while in office.
If you want to see courage, you can look at Chairman of the Federal Reserve Jerome Powell, who said the other day in his news conference that Trump can’t fire him because it would be unlawful. Badges of courage also go to Mike Pence, Liz, Cheney, and Adam Kinziger.
Are these four the only heroic and courageous people in this country?
Will anyone speak up?
Could it really be true that Smith is going to resign?
Merrick Garland, in a dereliction of duty, did not investigate Trump personally, for two years. Now, is he the one making this call? Smith is independent and based upon the way the regulations read, it’s not the call of the Attorney General (“ . . . the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney”). The DOJ manual cannot be used as an excuse because it does not contain the need for any United States Attorney to seek permission to prosecute a politician). Otherwise, where is the independence that DOJ sought in creating these regulations?
Richard Quadrino is an Adjunct Professor of law at George Mason University, Antonin Scalia Law School. The views expressed are his own.
