Former federal prosecutor Glenn Kirschner on Tuesday lamented the ways President-elect Donald Trump could evade ever facing prosecution.
Judge Tanya Chutkan granted special counsel Jack Smith’s request on Monday to dismiss his election interference case against Trump, citing Department of Justice (DOJ) guidelines that state the case must be dropped before Trump’s inauguration. Kirschner, on his YouTube Channel, described how Trump could ensure he will never face prosecution for the case, even after his presidency — an option Smith kept available in his motion to dismiss.
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“I want to hit on sort of three main areas of concern that tend to cut against the hope or the expectation that Donald Trump will be prosecuted in the future. The first is that when Donald Trump takes office and appoints an attorney general, that attorney general can direct his or her prosecutors to go into court and file what’s called a motion to reconsider,” Kirschner said. “And they could say, ‘Judge, we understand that not long ago, before there was a changeover in the administration, prosecutors asked that the criminal case against Donald Trump be dismissed without prejudice. We’re going to ask you to reconsider that ruling, and we’re going to ask you to dismiss it — with prejudice.’”
The former federal prosecutor said “there are some procedural and substantive impediments” to a Trump administration attorney general succeeding at persuading a judge to dismiss the case with prejudice, but that they “could try” it.
Kirschner added that Trump could likely pardon himself with impunity due to the current makeup of the Supreme Court.
“The Supreme Court granted presidents the power of lawlessness. So, what might Donald Trump do once he’s sworn in? ‘I’m pardoning myself.’ Now, I’ve maintained all along that a presidential self-pardon should not be accepted by the courts as lawful or constitutional,” he said. “I think that was a pretty darn good argument prior to this radical, right-wing, extreme six-justice majority that granted presidents the power of lawlessness. They would probably say he can pardon himself … So Donald Trump could deliver himself a pardon — a self-pardon — and I assume the Supreme Court would say, ‘Good to go.’”
Moreover, Kirschner suggested Trump make a deal with Vice President-elect JD Vance to receive a pardon from him instead of pardoning himself, saying “he could simply orchestrate a quid pro quo, ‘this for that’ bargain” with him. He said Trump could “resign the presidency” and ask Vance for “a full, blanket pardon for everything [he’s] ever done in [his] life.”
“That is a third way Donald Trump could avoid ever being prosecuted when he leaves office, unless the Supreme Court determined that it was such a corruptly delivered pardon that they would invalidate it,” Kirschner said. “Not likely from this Supreme Court.”
“So, friends, listen. I always have to call it the way I see it, and right now, I see it as pretty bleak and pretty dark. You know that we’re going to keep looking for the points of light. We’re going to feed them. We’re going to continue to talk about them. We’re going to hope that they grow and begin to overtake the darkness,” he continued. “But it’s pretty dark. It’s pretty dark right now. But we’ll keep fighting, and I know that y’all will keep fighting. Because Donald Trump wants us all to lay down. He wants us despondent, depressed, right? He wants us to just throw in the towel. We ain’t throwing in the towel. Because justice matters.”
The 11th Circuit Court of Appeals also accepted Smith’s request Tuesday to terminate the legal proceedings against Trump in his classified documents retention case.
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