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11 07 24 DU Law Prof Ian Farrell discusses existing indictments against Donald Trump
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Now that Donald Trump is president-elect Trump, Special Counsel Jack Smith is in talks at the Justice Department about how to end his prosecutions of the former president. Enjoying us now on the K-A common-spirit health hotline to talk more about it is DU Constitutional Law Professor. It's Ian Farrell. Professor Farrell, thank you so much for your time this morning. How are you? Welcome. It's always a pleasure when you have me on. Walk us through a little bit of this policy that says that a sitting president can't be prosecuted. What is it? And is it a pretty much hardened, fast policy that qualifies for any president in any situation? It's a policy that the Department of Justice has that's based on a ruling that isn't legally binding by the Office of General Counsel, and their thinking is that a sitting president can't be prosecuted for a crime because that will unduly interfere with the ability of the president to complete his job. And my expectation is that the argument would apply equally to president-elects because if they are called into court to address criminal charges that will interfere with their transition, the preparations will be coming, president choosing their cabinets and so forth. How does Jack Smith, how do you go about winding something like this back down or winding it out? Moving the toothpaste back in the tube a little bit. Yeah, so it's worth thinking about this in terms of the two different stages that each of the two federal cases are at right now. So with the election interference case that's being heard in DC, that was appealed as I'm sure everyone recalls on the argument that presidents have immunity and the U.S. Supreme Court said that presidents do have immunity at least with regard to official acts. So the special counsel Jack Smith had amended the indictment and refiled. I think that will be the simpler one to wind down because they can file a no prosecution would draw the indictment and that's relatively simple. The other case, maybe a little bit more complicated, that's the classified documents case in Florida because in that case the federal trial court judge had already dismissed the indictment on the grounds that the special counsel's appointment was unconstitutional. Now that's currently under appeal to the 11th Circuit Court of Appeals. The special counsel could simply withdraw the appeal. They may not want to do that, however, because they might want to get a ruling overturning the decision of the federal court trial judge saying that the appeal or that the appointment was unconstitutional because that's the sort of ruling that would be useful going forward in terms of future special counsel being appointed. Professor Farrell, when we look at these two federal cases, would this policy also imply to the two criminal, state criminal cases against him that we're seeing in New York and Georgia? Yeah, that's a great question, and again, the two criminal cases in Georgia and New York are in different stages, right? So again, as I'm sure everyone remembers, Trump was convicted on 34 counts of violating state law regarding falsifying documents in New York but hadn't yet been sentenced. There is in fact a scheduled sentencing for November 26 that I imagine that Trump will argue and his lawyers will argue that this should also be either dismissed or delayed because, again, being hauled into court to be sentenced would interfere with his transition and so forth. And they would also argue that if there was a sentencing hearing and there was a sentence imposed that should at least be delayed until after he is president because, again, having to serve either jail time or having some kind of confinement or any other criminal sentence would interfere with his duties. And I expect they would also argue that he not even face sentencing after his presidency on the argument that having that punishment hanging over his head as it were would also interfere with his presidential duties. Speak. Oh, go ahead. No, well, I was going to, and I apologize because we're running a little short of time, but I wanted to ask you mentioned the transition piece. This is probably just more of getting a perspective than it is legal. Do you think there's going to be a price to pay, obviously, by Jack Smith and the DOJ when the president-elect Trump takes office again? I mean, are they going to be fired, removed? Do you see a full reshaping of the DOJ? I believe that Trump has already said that he would, via Jack Smith, will be in two minutes of taking office. My guess is that Jack Smith will resign before that, and part of the reason for that is that special councils have to write a report of their investigations. If that report is written when Trump is already in office, it will almost certainly not be published. So my guess is that Smith would resign before Trump takes office, and that the Biden administration will publish the report. We'll continue following all of this, DU constitutional law professors Ian Farrell. Thank you so much for your time, as always. There's only one feeling like knowing your banker personally, like growing up with a bank you can count on, like being sure what you've earned is safe, secure, and local. There's only one feeling like knowing you're supporting your community. You deserve more from a bank. You deserve an institution that stood strong for generations. 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