Justice delayed is retribution green-lighted
The shelving of the federal criminal cases against Donald Trump does not alter the reality that he has committed heinous crimes against America
This piece was originally published at The Hot Screen.
Donald Trump’s attempt to overthrow the 2020 election results, and thus American democracy, is the great political crime of our age. From his efforts to suborn GOP officials into throwing out legitimate votes cast for his opponent, to his incitement of a mob to attack the U.S. Capitol, Trump fully transformed himself into an authoritarian enemy of the United States. We saw footage of the mobs with our own eyes; we were subsequently able to read extensive reporting from the media and evidence from the January 6 investigations of what Trump had done. His offense against America was real, and it was damning.
The U.S. government’s failure to prosecute and convict Trump for his actions adds catastrophe upon catastrophe. A lack of urgency from Attorney General Merrick Garland and other high officials in the Justice Department meant that charges against Trump, when they emerged, came perilously close to the next election cycle. Even if the Supreme Court had not stepped in to protect Trump from his crimes with its absurd immunity ruling, our justice system did not work with the urgency called for to bring a rogue former president to account.
The single most disorienting and disheartening fact about the presidential election we’ve just had is that a majority of voters decided that Trump should be returned to office despite the fact that he had tried to overthrow our democracy. Of course, many of his MAGA supporters don’t think he attacked democracy in 2020-21, but tried to save it — but it’s safe to say that Trump’s 2024 margin of victory came not from those hardcore voters but rather those who either didn’t think January 6 was disqualifying for a presidential candidate, or those who saw Trump remain out of jail in the subsequent years and concluded that what he did must not have been very serious. For the existence of these latter groups, we have both the weak-kneed Justice Department and the corrupt right-wing Supreme Court majority to thank.
Today, we’ve received the inevitable news that special counsel Jack Smith has asked a judge to withdraw the federal indictments against Trump both for his attempts to overthrow the 2024 election results and for allegedly retaining classified documents when he left the White House. The reason? A long-standing Justice Department rule that it’s unconstitutional to prosecute a sitting president. And so the absurd, failed process comes full circle. Slow to prosecute a criminal president, and sabotaged by a right-wing Supreme Court majority with a direct interest in that president’s return to power, the Justice Department now declares that Donald Trump’s re-election means that he escapes being held to account for crimes that relate directly to his fitness to be president.
It is well within the realm of possibility that a successful case against Donald Trump could have discredited him in the eyes of enough voters to deny him a second term, even if the Supreme Court had at some point intervened to stay any punishment (i.e., jail time). We are seeing the concluding act of a federal justice system unable to hold to account the one person it needs to be able to hold to account if we’re to be a nation of laws, based on the nonsensical idea that the president is above the law so long as he is president (an idea unfortunately strengthened by the Supreme Court’s immunity ruling, which holds that a president may try to overthrow the government as long as he considers doing so to be within the scope of his official duties).
Nonetheless, January 6 and its associated cloud of criminality remains a primary lens through which every American should view the second Trump administration. Trump showed himself not simply unfit to be president but to be an enemy of the country that I believe most people still understand the United States to be, where elections are decided by majority will, not by Proud Boys and other insurrectionists hunting legislators in the halls of Congress. His election three weeks ago by a majority of voters does not magically wash away his crimes; a majority of voters have made a grave mistake in entrusting power to Trump again, a mistake we will be measuring in lives lost, freedoms curtailed, national wealth looted, and equality under the law nullified. When a country fails to hold criminals to account, it will eventually find itself ruled by criminals.
If you don’t want to take my word (or case) for the 2020-21 insurrection being central to understanding Trump II, then I suggest you try listening to Donald Trump himself. Trump has always grasped that there was no way forward for him that didn’t involve presenting his attempted coup as a glorious defense of democracy, which not only means he is innocent of any crimes, but has also led him to such noxious behavior as calling jailed January 6 participants “political prisoners” (indeed, one of his first campaign promises was a vow to pardon those convicted of assaulting the Capitol). But Trump, being Trump, cannot ever really contain his criminality from public view, and so he has kept pushing his defense of the insurrection to its logical conclusion — to claim that a “stolen” election means that he can continue the insurrection once back in office, by turning right and wrong upside down, and punishing those who tried to stop him four years ago, as if those who defended American democracy are enemies to be subdued and jailed.
This is the mindset of a would-be dictator, not a prospective president.
I’ve read some smart takes that Donald Trump clearly aims to re-write the history of January 6 completely, with the end goal of making it disappear or even transforming it into a day that celebrates his greatness and absolves him completely of blame. I agree that such efforts are highly likely to occur, and have to admit that I find the prospect sickening; even more sickening is the thought that Trump might succeed in permanently altering mass perceptions of January 6 and his unparalleled criminality in trying to overthrow an election. But I’m fairly certain these attempts will not succeed — not for Trump’s lack of trying, and not just because opponents of Trump can still have their say, but because I think I’m right that January 6 remains the skeleton key for understanding Trump and his lust for power.
January 6 and Trump’s subsequent embrace of it as justification for second-term abuses makes it highly likely that his next term will be lawless beyond what most people currently imagine; that January 6 will increasingly look like a sneak preview, not an aberration that can be easily covered up. A man who would try to kill American democracy is capable of all manner of depravity; the great failure of the American people in this election was a self-destructive inability to grasp this basic truth. We already know that Trump is a sexual predator, that he wanted US soldiers to shoot protestors in 2020, that he has spoken of executing generals who questioned him. Donald Trump remains the deranged man he fully revealed himself to be after he lost the election in 2020; despite the shelving of the federal charges against him, he’s still a dedicated enemy of American democracy, and attempts to strategize against him or to opine on the unfolding of his second term while ignoring this reality will only end badly.