3 big truths about the Trump cases - and why they're not over yet (Part 1)

The cases against Trump appear to be dead -- but why? And what if some of the cases aren't actually dead after all? Here are the 3 things we all need to know -- and why we should be ready to fight.

The white flags came up as soon as the confetti and balloons from Trump’s victory party settled to the ground. Jack Smith hinted at surrender first. Then came Manhattan DA Alvin Bragg. The judges in the two matters likely assisted in the capitulations. Without even trying to fire additional shots, the prosecutors voluntarily dismissed their own criminal cases against Trump — even though, in the case of Bragg, a jury had already convicted Trump on 34 felony counts.

Live shot of prosecutors trying to bring Donald Trump to justice.

It is the most humiliating set of surrenders by prosecutors in American history.

And yet it may not be the end of the cases against Trump — especially if we are willing to apply public pressure, just as we did to Bragg and to DOJ the first time around.

Here are the three big things we all need to know about the cases right now:

1 - The surrenders by Jack Smith and Alvin Bragg were rooted in the appalling delays in bringing the cases — and sealed by misguided internal DOJ memoranda that no court, legislature, elected official, or voter ever weighed in on, and which were designed to protect the presidents under which those DOJ officials served.

Ultimately, the most critical factor in the prosecutors’ abject failures in these cases was the unpardonable delay in bringing the cases in the first place.

But the final demise of the cases was triggered by two internal memos from an elite unit within DOJ called the Office of Legal Counsel (OLC), the original one from 1973 and a second one in 2000 — both of which concluded that a sitting president is immune from criminal prosecution. Not because the Constitution says that (it doesn’t). Not because any federal law says that (there isn’t one). Not because there was ever any vote or public debate on that in Congress, or before the voters or their representatives in any way (there never was one). But because these unelected officials at DOJ determined that such a prosecution would be too disruptive to the president’s work.

(Never mind that if the president is committing crimes, we probably should be disrupting that president’s work. You know, because the job of law enforcement is to disrupt the work of criminals — that whole thing.)

Yet the biggest thing to note about the memos is when they were written. Gosh, I wonder why DOJ would have taken the time and work to make these determinations in 1973 and 2000, and why they would have reached the determinations they reached? What was going on at those times? Well, 1973 was during Watergate. And 2000 was just after the end of the Clinton-Lewinsky scandal. It is not a coincidence that DOJ just happened to be deciding whether a president could be prosecuted right when people were calling for the president to be prosecuted.

Let’s just get this straight. We shouldn’t be saying “DOJ determined that a sitting president is immune.” We should be saying “the Nixon DOJ determined that Nixon was immune” and “the Clinton DOJ determined that Clinton was immune.” The memos may be cloaked in the verbiage and filigree of top lawyer officialdom — but make no mistake, these were political decisions, made by senior executive branch officials to protect the presidents under whom they served.

These were deeply flawed opinions, written for the most dubious of reasons — and yet they are now treated with the force and authority of legal precedent. Indeed, without the OLC memos, the Supreme Court’s equally flawed and politically motivated immunity decision in Trump v. US would not have been possible.

And now, the OLC memos are the reason for the white flags of surrender. Jack Smith truly has no choice: he and his team work for DOJ, and they have to abide by DOJ’s internal rules (although I’d be willing to bet that they would want to continue their prosecutions right now if they could).

Alvin Bragg, however, has no such excuse. He does not work for DOJ. The OLC memos do not bind state or local prosecutors in any way. He is committing the first cardinal sin of resisting autocracy, as outlined by Timothy Snyder — he is obeying in advance. Rather than make the legal argument as to why the convictions against Trump should still stand and why he should now be sentenced, even though he has been elected to office, Bragg declined to make any argument at all. Yes, it is likely that the argument would ultimately have failed: Judge Merchan seemed to lack the fortitude to apply the law blindly and equitably to Trump in this situation, and even if some court had entertained the argument, SCOTUS would likely have thwarted the effort in the end, letting Trump off the hook.

But Bragg did not even try. Nor have any reasons been given as to why the case is being dismissed, the convictions disregarded, the democratic accountability of a unanimous jury of Manhattan citizens discarded. It was a case that began in infamy — wrongly scuttled because of political timidity and delayed for an entire year — and that now ends in even deeper infamy and shame.

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Next we’ll continue this look into the Trump cases — and specifically why one of them is still very much alive (and should not be lumped in with the others), and why even the seemingly dead Trump cases should not be written off at all (and what We the People can potentially do about it).