Checkmating DoJ and Jack Smith

This week, all eyes were on the Willis-Wade fiasco in Fulton County, Georgia, but three less smuttily scintillating cases seem at last to be limiting the overreach of the Department of Justice respecting the J6 defendants and Jack Smith’s persecution of President Donald Trump. In interpreting criminal statutes, it seems to me that Courts should not be creative and expansively read into them things that the legislature (that writes the laws) did not clearly proscribe as illegal, and it appears that finally, courts higher than the highly partisan D.C. Circuit judges understand that.

If you have been paying attention at all, you are aware that hundreds of peaceful January 6 demonstrators at the Capitol have received draconian punishments and, as Julie Kelly so assiduously reports, are being very badly treated in confinement. A few have even committed suicide because of their treatment at the hands of the D.C. Courts and the prosecution.

Two cases signal that as many as 100 or more of them will have a pathway to obtain reduction of their sentences. As I will explain, these cases and the Supreme Court’s grant of certiorari in response to a Trump motion for a stay, may well result in a major loss to Special Counsel Jack Smith and those counting on a jail term for Trump being a vehicle to schlep the demented President Biden over the finish line for a second term.

All the J6 defendants who pleaded guilty had to agree not to challenge the levels of sentence enhancement the DoJ said were applicable. Those who refused the plea deals and went to court (a lesser number) were given those enhancements anyway by the D.C. Circuit Court judges. The relevant statute allows under the sentence enhancement provision a sentence of up to 20 years, so the option of a plea deal was attractive to many (on top of the cost of proceeding, for as you remember, the big firms which rushed to provide pro bono representation to Gitmo defendants couldn’t be bothered with these people.)