The Situation: Democracy Dies in Both Sides-ism

The Situation on Thursday offered some thoughts on the arraignment of former FBI Director James Comey.

The same day as that arraignment, on Oct. 8, the Washington Post also offered thoughts on the Comey indictment. There was a time, and it wasn’t that long ago, when a Post editorial in response to sycophantic Justice Department officials obeying a direct order from President Trump—“Pam: ... We can’t delay any longer”—to bring an explicitly vindictive prosecution against a critic and former official would have thundered. It would have offered moral and intellectual leadership in polarized times.

It is inconceivable that the Post editorial page under the leadership of Don Graham, Fred Hiatt, Jackson Diehl, and Ruth Marcus would have offered such a pitiful squeak of both-sides-ism.

Entitled “Jack Smith’s lawfare and James Comey’s arraignment on pathetically weak charges,” the editorial tried to equate the historic abomination that Comey’s prosecution represents to the former special counsel’s two weighty and thoroughly righteous indictments against Trump.

The hook for the Post’s outrage at Smith is a “revelation” from Sen. Chuck Grassley (R-Iowa) that, in September 2023, the FBI analyzed phone call records—that is, the telephone numbers that the subjects had dialed and the telephone numbers of the people who had dialed them—of eight Republican Senators for the period just before and after the bloody Capitol siege: Jan. 4 to Jan. 7, 2021. The Post editors say this investigative step exemplifies Smith’s “hardball methods” and was part of the Democratic “legal aggression” that “set the stage for the dangerous revenge tour on which [Trump] is now embarked.”

The claim is preposterous.

Let’s review the Smith prosecutions against Trump that the Post editors are purporting to suggest set the stage for Trump’s against Comey. The original indictment Smith filed in Washington, D.C., alleged three conspiracies and one substantive count relating to Trump’s attempt to steal the 2020 election. That conspiracy outlined six different dishonest schemes, the last of which included Trump’s alleged attempt to exploit the violence of the Jan. 6 riot itself to achieve his unconstitutional goal. There the indictment alleged, for instance, that even after the violent mob attacked the Capitol, injuring 140 police officers and leaving several people dead, Trump and his co-conspirators continued “calling lawmakers in an effort to convince them, by knowingly false claims of election fraud, to delay the certification,” including: 

a. The Defendant, through White House aides, attempted to reach two United States Senators at 6:00 p.m.

b. From 6:59 p.m. until 7:18 p.m., Co-Conspirator 1 placed calls to five United States Senators and one United States Representative.

c. Co-Conspirator 6 attempted to confirm phone numbers for six United States Senators whom the Defendant had directed Co-Conspirator 1 to call and attempt to enlist in further delaying the certification.

d. In one of the calls, Co-Conspirator 1 left a voicemail intended for a United States Senator that said, "We need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they're reconvening at eight tonight but the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow—ideally until the end of tomorrow."

e. In another message intended for another United States Senator, Co-Conspirator 1 repeated knowingly false allegations of election fraud, including that the vote counts certified by the states to Congress were incorrect and that the governors who had certified knew they were incorrect; that "illegal immigrants" had voted in substantial numbers in Arizona; and that "Georgia gave you a number in which 65,000 people who were underage voted." Co-Conspirator 1 also claimed that the Vice President's actions had been surprising and asked the Senator to "object to every state and kind of spread this out a little bit like a filibuster[.]"

Smith also brought another indictment, in the Southern District of Florida, accusing Trump of 40 felony counts relating to a conspiracy to obstruct justice by attempting to use his employees and even his attorneys to help him evade government efforts, including a grand jury subpoena, to return more than 100 highly classified documents that he had been wrongfully withholding for almost 18 months. According to that indictment, for instance, one of Trump’s attorneys, who’d gathered classified documents responsive to a subpoena and had placed them in a redwell, dictated a contemporaneous CYA recording recounting a conversation with his client that obviously upset him: “[Trump] made a funny motion as though—well okay why don’t you take them to your hotel room and if there’s anything really bad in there, like, you know, pluck it out.”

Does somebody really think the Comey indictment is comparable to Smith’s indictments of Trump? Actually, not even the Post thinks that.

In Comey’s case, the Post editors admit that the charges are “pathetically weak.” As those editors know, if they read their own paper, the Trump-appointed U.S. attorney resigned rather than abuse his office and abdicate his oath by bringing those accusations. Trump then instructed his attorney general to bring them anyway because, as he explained, social media influencers were complaining that “it’s killing our reputation,” and because he wanted vengeance for the fact that “they impeached me twice, and indicted me (5 times!).” He then named a new U.S. attorney—a loyalist who had never served as a prosecutor before—who promptly obtained an indictment on two charges so opaque that we still aren’t certain exactly what they’re for. She was also rebuffed on a third count that the grand jury rejected for lack of even probable cause to believe that any crime had been committed.

What exactly do the Post editors think Jack Smith did wrong that was commensurate with the impeachably abusive conduct that was needed to produce the Comey indictment? Did Biden instruct Smith, or Attorney General Merrick Garland before him, to bring charges against Trump—let alone charges so bogus that a career prosecutor resigned rather than present them to a grand jury? The question answers itself.

Unable to compare like things to like—because the situations aren’t remotely alike—the editors purport to be upset about the FBI doing a four-day call-records analysis on eight Senators’ phones. They then sheepishly admit that such call toll records are “far less invasive” than, say, an actual search of phone content and that “it’s not a mystery” why investigators sought them, given that the records would obviously help them prove the charges against Trump. So they then change the subject to the magistrate-approved search of the phone of Rep. Scott Perry (R-Penn.), which they claim was abusive as a violation of the Speech or Debate Clause.

But while a panel of the D.C. Circuit—consisting of three Republican appointees, including two Trump appointees—did narrow the categories of information that investigators were allowed to use from Perry’s phone, they did not question the propriety of investigators searching his phone nor, indeed, of their using some of the information they found there. The fact that a prosecutor could not precisely foresee how a specific, randomly-assigned panel of appellate judges would parse the application of a complex constitutional rule to a specific fact situation is not abuse; it’s part of the job description.

The Post editors then pile on some makeweight arguments to their trifling, call-records gripe. First is that Smith “charged Trump for official acts he took as president.” But this is just a more absurd version of the Perry gripe. A bipartisan panel of the D.C. Circuit had unanimously upheld Smith’s indictment against any immunity defense. So here, the Post’s editors are faulting Smith for failing to anticipate that a 6-3 majority of the Supreme Court would issue a historic ruling asserting for the first time in the nation’s history that a president’s criminal conduct was presumptively immunized so long as it involved “official acts.” And even with that unforeseeable ruling, much of Smith’s original indictment would likely have survived. Again, a prosecutor’s inability to read the minds of a majority of the Supreme Court justices in their announcement of novel constitutional law is not abusive. 

After that, the Post’s editors really start grasping at straws. First, they complain that Smith sought a gag order to “limit Trump’s ability to criticize the case.”

Seriously? This is the sort of conduct they suggest led to Trump’s indictment of Comey? As for the gag order, it would have been malpractice not to seek one, given Trump’s relentless campaign to intimidate witnesses and pollute the jury pool. “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” he posted on social media three days after the Washington, D.C., indictment was returned. Later that same month he disseminated this whopper: “It has just been reported that aids to TRUMP prosecutor, Deranged Jack Smith, met with high officials at the White House just prior to these SleazeBags Indicating [sic] me OVER NOTHING.” In fact, as Trump knew, the meeting in question, commemorated in an FBI report his attorneys had received, related to an interview with a career military official at his duty station, which happened to be the White House.

These sorts of malevolent lies and distortions could not only contaminate jury perceptions but were triggering threats against witnesses, prosecutors, investigators, and court personnel. A few days after Trump denounced on Truth Social the FBI agents who had peacefully and professionally executed the magistrate-approved search warrant on his Mar-a-Lago property for “sieg[ing], raid[ing], “occup[ying]” his home as “part of an attack by Radical Left Democrats,” for instance, a Trump supporter attacked the FBI field office in Cincinnati, armed with an AR-15 rifle and a nail gun. He was killed in a shoot-out.

Those are just some of the reasons why Judge Chutkan ultimately did grant a narrow gag order—which never, in any event, barred Trump from criticizing the prosecution. The appeals court unanimously upheld a narrower version of that order, writing:

Mr. Trump is a former President and current candidate for the presidency, and there is a strong public interest in what he has to say. But Mr. Trump is also an indicted criminal defendant, and he must stand trial in a courtroom under the same procedures that govern all other criminal defendants. That is what the rule of law means.

Smith committed no wrongdoing whatsoever in seeking a gag order. 

Finally, the Post claims, Smith “tried to accelerate the case to try a leading presidential candidate before the 2024 election.” Here reasonable people have questioned Smith’s litigation strategy. He pushed to have the trial set before the 2024 election, without ever quite acknowledging that was what he was doing. And he faced criticism for it from, among other commentators, one of the present authors (“The pretence honors an important set of democratic values. At the same time, allow me to confess that I find it all a bit quaint.”), Harvard Law Professor Jack Goldsmith (“[H]e urged the Supreme Court to hear Mr. Trump’s immunity claim on an expedited basis because of the ‘imperative public importance’ of trying Mr. Trump as soon as possible. Mr. Smith never explained the need for speed.”), and Chief Justice John Roberts (“Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis.”).

But to compare pushing for a faster trial on a merited indictment with filing a frivolous indictment for explicitly vengeful political reasons is a failure of moral reasoning. One can criticize it, but it is not remotely in the same ballpark as intentionally filing a false indictment for reasons of malice, vengeance, and intimidation. It is a matter that is easily corrected by, say, a few passing lines of explanation in a motion or court opinion. In any event, seeking a prompt trial flows from an understandable urge to let the public know as much as possible about the quality of the evidence against a presidential candidate before an election, rather than afterwards. That makes some sense in a democracy.

There was a time, and it ended only recently, when the Post editorial page stood for knowing these things. Yet the Post makes no attempt to reconcile the tone or substance of this editorial, for example, with other positions it has taken, some barely a year ago. See, for example, here and here and here and here and here.

The Post has never been a partisan institution. Its opinion pages always published a lot of conservative thought, and its editorials often frustrated Democrats with a refusal to tow the party line. There are issues on which its willingness to criticize both sides have infuriated Democrats; one of us, for example, spent years writing Post editorials insisting that both Republicans and Democrats have a lot to answer for in the judicial confirmation wars. We are not here criticizing the Post for being willing to attack an escalatory ladder to which both Republican and Democratic administrations have contributed. Were that the reality, it would be right and proper and in the highest tradition of the Post editorial page for it to point that out—however politically unpopular the point might be.

The problem, rather, is that the Post is describing an escalatory cycle that is almost entirely fictitious. Both sides have not, in fact, contributed to this problem. George W. Bush did not commit serial crimes in office. Barack Obama did not commit serial crimes in office. Joe Biden did not commit serial crimes in office.

Donald J. Trump was credibly accused of committing a series of crimes in office. And when he left office, he allegedly continued to commit crimes. Consequently, the Justice Department under the leadership of a distinguished former federal appeals court judge, appointed a distinguished special counsel who indicted Trump for some of those offenses—not a single charge of which has ever been dismissed because, say, Trump did not commit the crime in question. In doing so, Smith committed no misconduct ever found by any court.

In response, the current president is prosecuting his political foes on frivolous indictments that will not stand up in court and firing the prosecutors who refuse to participate in the charade.

The Post’s motto is “Democracy Dies in Darkness,” but it doesn’t do well in false equivalence either.

The Situation continues tomorrow.