Quite the indictment of Garland…
We have just witnessed the greatest failure of federal law enforcement in American history.
The reasons for Donald Trump’s reelection are numerous and will be hotly debated in the weeks ahead. But the story of his comeback cannot be told without seriously grappling with how he managed to
outrun four criminal cases, including — most notably — the Justice Department’s prosecution over Trump’s alleged effort to overturn the 2020 election.
At the root of it all are the considerable and truly historic legal missteps by the Biden administration and Attorney General Merrick Garland, as well as a series of decisions by Republicans throughout the political and legal systems in recent years that effectively bailed Trump out when the risks for him were greatest.
The two federal criminal cases against him are now dead as a practical matter. Already
there is reporting suggesting that special counsel Jack Smith will leave his post and dismiss the pending cases, which is not that surprising considering that
Trump pledged to fire himonce back in office anyway. The Georgia case,
an overhyped and
misguided vehicle for post-2020 legal accountability, is going to remain on ice and perhaps get thrown out entirely in the coming years, at least as to Trump (if not his co-defendants). In Manhattan, where Trump was supposed to be
sentenced in a matter of weeks after his conviction in the Stormy Daniels hush money case earlier this year, Trump is likely to ask the court to cancel the sentencing date; regardless of the mechanics, there is no reasonable scenario in which Trump serves some
period of incarceration while also serving in the White House.
All of this will happen despite
the majority of the public’s stated interest in concluding the criminal cases — the federal election subversion case in particular — as well as polling that suggested that Trump’s conviction early this year
hurt his standing across the electorate and with independents in particular.
If that seems incongruous, it is not. The most obvious explanation for Trump’s win despite his considerable legal problems is that a critical mass of voters were willing to set aside their concerns about Trump’s alleged misconduct because of their dissatisfaction with the Biden-Harris administration. Fair or not, this was absolutely their right as voters.
But if the system had worked the way it should have, voters would never have faced such a choice. If Trump had actually faced accountability for his alleged crimes, he may not have even appeared on the ballot.
The most comprehensive accounts on the matter, from investigative reporting at
The Washington Post and
The New York Times, strongly indicate that the Jan. 6 committee’s investigation and public hearings in 2022 effectively forced Garland to investigate Trump and eventually to appoint Smith in November of that year — nearly two years after Trump incited the riot at the Capitol.
There are many people — including many Democratic legal pundits — who have continued to defend this delay and may continue to do so, so let me be very clear: Those people are wrong.
It was clear after Trump’s loss in 2020 — even before Jan. 6 — that his conduct warranted serious legal scrutiny by the Justice Department, particularly in the area of potential financial crimes. But that probe, which could and should have been pursued by
Biden’s U.S. Attorney and
aspiring attorney general in Manhattan,
somehow never materialized.
It was also clear —
on Jan. 6 itself — that Trump may have committed criminal misconduct after his loss in 2020 that required immediate and serious attention from the Justice Department.
The formation of the Jan. 6 committee in early 2021 did nothing to change the calculus. There too,
it was clear from the start that there would still need to be a criminal investigation to deliver any meaningful legal accountability for Trump.
In fact, the warning signs for where this could all end up — where the country finds itself now — were clear by late 2021, less than a year into Biden’s term. The public reporting at the time indicated (correctly, we now know) that there was no real Justice Department investigation into Trump and his inner circle at that point, even though the outlines of a criminal case against Trump — including some of the charges themselves that were eventually brought nearly two years later —
were already apparent.