I haven’t been able to find much out about Jason Willick. He has a B.A. from Stanford and worked at Francis Fukuyama’s magazine The American Interest for a while before landing a job at the Wall Street Journal. Now he’s writing for the Washington Post, and his latest piece annoyed me enough that I feel compelled to respond.
The editorial has a headline, “Go ahead, gag Donald Trump” with an implied “I dare you.” It’s a reference to a motion special counsel Jack Smith made in court on Friday that has been widely reported as a request for a “partial gag order” of the disgraced ex-president. So, you won’t be surprised to learn that Willick is opposed to this motion, nor that he’s opposed to the whole idea of prosecuting a presidential candidate.
Now, I don’t want to leave you in suspense, so I’ll tell you up front that way, way down at the very end of this piece, Willick acknowledges that “It would be far better for the country if Trump supporters finally broke with the former president…” I tell you this so you don’t suffer under the misimpression that Willick is some big Trump supporter. It’s true that given this position he’s taken, he might as well be a MAGA Republican, but he assures us that he’s dealing strictly on principle here.
But I don’t know why he puts the onus on Trump supporters to abandon him when he could just as easily put the onus on Trump to drop out of the race.
Instead, he has something negative to say about everyone except Trump.
Now, if you’ve been reading these pages, you know that I predicted Trump would announce his candidacy for president before he did so, and the reason I gave was that it was the best legal strategy available to him. He wanted to convince the Justice Department to back off but when he announced, Attorney General Merrick Garland immediately appointed Smith as counsel to create more distance between the Biden administration and the investigation of January 6 and the documents case.
“Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel,” said Attorney General Garland. “Such an appointment underscores the Department’s commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors and agents to continue their work expeditiously, and to make decisions indisputably guided only by the facts and the law.”
…I strongly believe that the normal processes of this Department can handle all investigations with integrity. And I also believe that appointing a Special Counsel at this time is the right thing to do. The extraordinary circumstances presented here demand it. Mr. Smith is the right choice to complete these matters in an even-handed and urgent manner.”
So, Trump played his gambit. He knew he was going to get indicted unless he tried something dramatic, but Garland called his bluff and said, “No, you can’t avoid charges simply by making us look politically motivated.”
Yet, Willick doesn’t seem to understand this history and context at all.
I think the election interference case against Trump is legally flawed and — to the extent that it is valid — unwise to prosecute in the middle of an election season. The criminal-legal system, with all its punitive strictures, wasn’t designed to function with leading presidential candidates as defendants.
That’s the precise reaction Trump was looking for when he declared for president. He wanted to convince Garland that it would be unwise, but since that failed, his fallback is to convince just one juror to nullify complete slam-dunk cases against him. Willick is writing in the local Washington DC paper where the jury will be selected for the January 6 trial, so he’s effectively doing Trump’s work for him.
But of course the article is less about the decision to charge in the first place than the possibility of gagging Trump by limiting what he can say about the trial. So let’s consider what actually happened on January 6. Trump told a bunch of enormous lies resulting in a riot that caused enormous property damage, as well as injury and death to police officers and riot participants. We clearly have to be concerned about what might happen if Trump tells more lies and issues new threats, especially if those threats are directed at anyone who might be involved in his trial. That includes the court facility itself, the judge, the prosecutors, the citizens of Washington DC (the jury pool), and all the potential witnesses. Does Willick understand this?
Special counsel Jack Smith recently filed for an extraordinary gag order against Donald Trump. The prosecutor wants to limit Trump’s ability to criticize the criminal case against him for trying to overturn his 2020 election loss. The filing, published Friday, will give Trump more fodder to claim that President Biden’s Justice Department is interfering with the 2024 presidential campaign…
…Smith’s motion, which District Judge Tanya S. Chutkan has to rule on, claims to seek only a “modest” gag order. That’s not true. The prosecutor wants to bar Trump from “disparaging and inflammatory” statements not just about potential witnesses but also about “any party” to the case in United States v. Trump. That seems to include the prosecution and Biden’s Justice Department in general.
Here’s where I have to go back to the beginning. No one forced Trump to announce his candidacy. He knew full well that he was about to be indicted on serious federal charges, which is why he announced when he did. We have to keep this fact always at the front of our minds when he think about a possible restriction that would prevent a candidate from criticizing the Department of Justice as an entity. Any other similarly positioned criminal defendant, say a mob boss or a drug kingpin, who had the power to order organized violence against a federal courthouse or government officials, would probably not be out on bail and certainly could be thrown in prison for a bail violation if they made menacing remarks. The government, including the courts, have every right and even a responsibility to protect themselves. And the defendant here has not only attempted a coup against the government once, but even had his mob attack Congress and hunt his own vice-president. To treat him as an ordinary leading presidential candidate like Bob Dole or John McCain is absurd. If he’s convicted, he’ll be convicted for the most serious crime committed in this country since the south seceded from the Union.
That’s the full context here, and yet Willick is concerned that Trump’s freedom to defame the Justice Department is being curtailed. But let’s remember another thing. Trump can’t testify in his own defense because he’d commit ten acts of perjury with every response under oath. Everyone knows this. So, the only way he can talk to jury is through the media, now, and through people writing in the jury’s paper, like Willick. Trump’s lies are an effort to tamper with the jury, and they function the same way as his threats.
In one passage, Smith complains that “the defendant posted a quote alleging, without any basis, that the indictment that a federal grand jury in this case returned had been directed by the sitting president: ‘Joe Biden directed his Attorney General to prosecute his rival. This is not an independent Justice Department, this is not an independent special counsel. This is being directed by the Commander-in-Chief.’ ”
“Through such posts,” the motion continues, “the defendant is attempting to submit his false and inflammatory claims to the public and jury pool outside of court.”
This passage is revealing. It shows the breadth of the gag order Smith seeks: He wants to prevent Trump from tying Biden to this prosecution during an election in which the two might face each other.
The idea that Biden is directing the prosecution is inflammatory and incorrect. And while I acknowledge that Willick makes a single defensible point in this piece when he argues that “the White House has ways of influencing an attorney general short of giving him explicit directives — such as through media leaks,” the mere fact that it has been reported that Biden privately thinks Trump is a criminal who should be prosecuted doesn’t distinguish him from any other sensible person. It doesn’t mean Biden is clandestinely ordering Garland around, nor that he has any say in what Smith thinks can and should be proven in court. Theses cases are not efforts to beat Trump in an election and they would have proceeded if Trump never became a candidate. They will proceed even if he drops out, which he should.
But Willick never argues that Trump should not have run, nor that he only ran so he could make a more compelling case that his prosecutions are politically motivated. Instead, he does everything Trump would want a Washington DC reporter to do in this instance. He’s a water-carrier and a disgrace to his profession.