As Trump lead widens, prosecutors step up pursuit
Byron York
AS TRUMP LEAD WIDENS, PROSECUTORS STEP UP PURSUIT. Two things are true today. One, former President Donald Trump’s polling, nationally, in key swing states, and in the first-voting state of Iowa, has never been better. And two, Jack Smith, the special counsel appointed by the Biden Justice Department to prosecute Trump, is taking self-described “extraordinary” measures in a rush to put Trump on trial before the 2024 presidential election. The two things are not unrelated. And nothing could more effectively illustrate the contrast between Trump’s rising political fortunes and the administration’s effort to imprison him before the election.
The Iowa polling was the subject of yesterday’s newsletter. The new Des Moines Register poll, considered quite reliable, showed Trump extending his lead to 32 points over second-place Ron DeSantis, 51% to 19%, with Nikki Haley in third place at 16%. The pollster called Trump’s lead “commanding” and noted that the shrinking GOP field, which was supposed to help Trump’s opposition, “may have made Donald Trump even stronger than he was.” The Iowa caucuses are now a little less than five weeks away.
As far as the key swing states are concerned, CNN released a new general election poll showing Trump leading President Joe Biden in head-to-head matchups in Georgia and Michigan. Biden, of course, won both states in 2020, but the CNN pollsters found Trump with a 5-point lead, 49% to 44%, in Georgia, and a 10-point lead, 50% to 40%, in Michigan. “Broad majorities in both states hold negative views of the sitting president’s job performance, policy positions, and sharpness,” CNN reported.
Subscribe today to the Washington Examiner magazine that will keep you up to date with what’s going on in Washington. SUBSCRIBE NOW: Just $1.00 an issue!
As far as the national polling is concerned, the Wall Street Journal released a new survey showing that Trump not only leads Biden in a one-on-one contest, 47% to 43%, but is stronger in a race that includes third-party candidates. The poll showed those third-party candidates, led by Robert F. Kennedy Jr., drawing a total of 17% support in a multicandidate race, while at the top, Trump led Biden by 6 points, 37% to 31%.
The really good news for Trump is Biden’s remarkable weakness. “Trump has double-digit leads on being able to best handle the economy, inflation, crime, securing the border, the Ukraine war, and the Israeli conflict,” political analyst Sean Trende noted on X. “Biden has a double-digit lead on abortion rights. Everything else is single digits, which sounds good except that things like healthcare policy and social security are supposed to be double-digit Democratic leads.”
And then there are the two candidates’ personal attributes. “Mentally up for the job of president? Trump +16,” Trende continued. “Physical stamina to be president? Trump +34.” And finally, the big question: “When they asked if a president’s policies helped or hurt, with Trump it was 49-37 helped. With Biden it was 23-53 HURT,” Trende wrote.
Given all that, it is safe to say that in the last year of campaigning, Trump has never been in a stronger position. If that wasn’t clear before Monday, it is certainly clear now.
Also on Monday, Jack Smith, the Justice Department-appointed special counsel who is prosecuting Trump on 40 felony counts in the classified documents case and four felony counts in the Jan. 6 election case, filed what he acknowledged was an “extraordinary request” with the Supreme Court in the election matter. Smith asked the court to shortcut normal procedure and get involved immediately in adjudicating Trump’s contention that as a former president, he is immune from prosecution for things he did as president, or at least immune because he was previously impeached and acquitted.
Trump originally made the argument before U.S. District Judge Tanya Chutkan, who is presiding over the Jan. 6 election case. She rejected Trump’s argument. Now, Trump has the right to appeal. Normally, he would appeal to the U.S. Court of Appeals for the District of Columbia Circuit. The case would be assigned to a three-judge panel, which would rule on the matter. If Trump loses again, he might ask that all the judges in the court consider the case. If he loses again, he could appeal to the Supreme Court.
Trump is fully within his rights to ask for those appeals, especially since the question he is presenting, immunity for a former president, has never been decided by any court. But the process takes time. Months and months will go by. Chutkan has scheduled Trump’s trial to begin on March 4. If Chutkan can stay on that schedule, she can keep Trump locked down in a courtroom for a significant part of the Republican primary process and then, perhaps, if he is convicted by an all-Washington jury, jail the former president by the time the general election campaign’s final leg begins on Labor Day.
From former federal prosecutor Andrew McCarthy: “Under federal law, Trump will have to attend his trial every day. Combined, the felony charges carry a statutory minimum prison term of 55 years. A conviction on even one count is likely to call for an incarceration sentence under the federal guidelines. Hence, if Trump is convicted, he faces the very real possibility of being ordered to begin serving a prison term during the campaign stretch run. (If Trump were convicted in May, he’d likely be sentenced in August. The presumption in federal law is against bail pending appeal.)”
As far as Jack Smith is concerned, a normal Supreme Court appeals process would mess everything up. Trial could not start on March 4, there would be no verdict in May, and Trump would not be in jail by Labor Day. The whole thing might stretch into 2025. So Smith has asked the Supreme Court to jump in and take the appeal directly, skipping the whole court of appeals process. “The United States recognizes that this is an extraordinary request,” Smith wrote. “This is an extraordinary case. The Court should [take the case] and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.”
Here’s an interesting thing. In his filing with the Supreme Court, Smith says over and over that it is hugely important that the case be decided ASAP — but he never says precisely why it has to be decided so quickly. For example, Smith wrote, “It is of paramount public importance that [Trump’s] claims of immunity be resolved as expeditiously as possible — and, if [Trump] is not immune, that he receive a fair and speedy trial on these charges.” Smith’s worry is that if the case is allowed to go through the “ordinary” appellate process, “it is unclear whether this Court would be able to hear and resolve the threshold immunity issues during its current term.”
In another place, Smith wrote that the “public interest” in the case “requires immediate resolution of the immunity question to permit the trial to occur on an appropriate timetable.” And in another place, Smith wrote: “It is of imperative public importance that [Trump’s] claims of immunity be resolved by this Court and that [Trump’s] trial proceed as promptly as possible if his claim of immunity is rejected.”
Why the rush? Although Smith says the case is of “paramount” and “imperative” public importance, he never says exactly why. Perhaps some will think that is obvious: Trump is a former president accused of crimes, and there has never been such a case before in U.S. history. But why does that mean the case must be speeded through the courts? Smith does not say, but the reason seems clear: Smith is in a hurry because he has very little time to try the case and imprison Trump before the 2024 election. He just can’t come out and say it that way. If he did, he would highlight the fundamentally political nature of the prosecution.
Smith’s Jan. 6 election case is Trump’s adversaries’ best hope of finding Trump guilty of something before the election. The federal classified documents case against Trump, Smith’s other prosecution, is complex, involves lots of classified material, and is looking like it will stretch beyond next year. The Georgia prosecution of Trump, covering some of the same ground as Smith’s 2020 election case, is sprawling and slow. “I don’t expect that we will conclude until the winter or the very early part of 2025,” Fulton County District Attorney Fani Willis said recently. And the first indictment of Trump, Manhattan District Attorney Alvin Bragg’s hush money case, is the weakest of the bunch and is also the subject of discussion about delay. It is scheduled to begin March 25, but that will depend on what happens in the federal Jan. 6 case.
If you are a die-hard “Resistance” or Never Trumper hoping to see the former president behind bars before the 2024 election, your best hope is the Jan. 6 case. But that won’t happen unless the Supreme Court grants Smith his “extraordinary request” and speeds up the schedule.
And the day Smith hurried to the court just happened to be the day the public received all sorts of new indications of Trump’s strength in the presidential race. National, swing state, early state — he’s doing very well in them all, against Republican primary opponents and against President Joe Biden in a general election rematch.
It’s always prudent to note that the election is still 11 1/2 months away and that everything could change between now and then. And what might change? Perhaps some Democrats and other Trump opponents won’t say it so bluntly, but their hope is that convicting Trump of felonies, and actually putting him behind bars, will finally put an end to his bid for another term in the White House.
People get caught up in the details and sometimes lose sight of the big picture. But the big picture is this: The current administration is trying to imprison its chief political opponent before the next election. One side thinks this is entirely reasonable, and the other side thinks it is what Andrew McCarthy called “a dangerous, norm-breaking precedent.” Whatever you think, that is what is happening.
For a deeper dive into many of the topics covered in the Daily Memo, please listen to my podcast, The Byron York Show — available on Radio America and the Ricochet Audio Network and everywhere else podcasts can be found.