In this episode, Pam Karlan is joined by Stanford Law School Professor David Sklansky, a leading criminal law expert, for a wide-ranging discussion of Smith’s report, the evidence against the president-elect, and more.

In the early hours of January 14, 2024 the Department of Justice released its long-awaited election interference report against President-elect Donald Trump. It was a long and winding road to that moment—and one marked, ultimately, by justice delayed.

In November 2022, Attorney General Merrick Garland appointed Jack Smith as special counsel to oversee criminal investigations by the Justice Department into former President Donald Trump’s efforts to overturn the 2020 election and his retention of classified documents. The two cases were brought in different jurisdictions—with charges for the classified documents case filed in Florida and the elections case in Washington, D.C.

After false starts, the blockbuster Supreme Court ruling on July 1, 2024 that former President Trump is entitled to some immunity from criminal prosecution for actions taken to overturn the results of the 2020 election, and the subsequent re-election of Trump in November, Smith and the DOJ dropped both cases. (Publication of Smith’s report regarding the documents case is delayed due to pending charges against co-conspirators.)

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Links:

David Sklansky >>> Stanford Law page
Criminal Justice in Divided America, Police, Punishment, and the Future of Our Democracy >>> Stanford Lawyer magazine online feature

(00:00:00) Chapter 1: Introduction and the Role of Special Prosecutors

Pam Karlan and David Sklansky discuss the history and purpose of special prosecutors, their use in politically sensitive cases, and the implications of their reports. Sklansky explains the transition from independent counsels to special counsels and highlights examples like the Mueller Report and investigations into Hunter Biden.

(00:05:01) Chapter 2: Insights from Jack Smith’s Report

The conversation shifts to Jack Smith's report on Donald Trump. Karlan and Sklansky explore the evidence presented, its connection to the January 6th events, and the debates around releasing such reports. Karlan questions the timing of appointing a special counsel, given much was already public knowledge.

(00:08:25) Chapter 3: Prosecution Outcomes and Future Implications

Karlan and Sklansky discuss the slow progress of Trump’s investigation compared to other January 6th prosecutions. They also cover Trump’s promise to pardon convicted January 6th defendants, the fate of unnamed co-conspirators, and the ethical questions surrounding Todd Blanche’s involvement at the DOJ.

(00:12:16) Chapter 4: Decisions and Legal Strategies in Trump’s Prosecution

Karlan and Sklansky discuss the decision not to charge Donald Trump with insurrection, focusing instead on charges like fraud and voter suppression. They analyze why the special counsel avoided certain charges and the challenges of applying existing statutes to unprecedented events.

(00:16:30) Chapter 5: The Supreme Court’s Role and the Impact on Prosecution

The conversation explores delays caused by the Supreme Court, including its handling of presidential immunity. Karlan and Sklansky explain how these rulings affected timelines and created legal ambiguities that could influence appeals and the overall process.

(00:19:00) Chapter 6: Restoring Trust in Criminal Justice and Democracy

Karlan and Sklansky shift focus to broader implications for democracy, discussing how Trump’s prosecutions might deepen distrust in institutions. They consider paths to reform, including bipartisan efforts to reinforce the rule of law and community policing. The episode concludes with reflections on lessons from past legal leaders and the enduring relevance of Robert Jackson’s warnings about prosecutorial overreach.

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