Failed laws and politics gave us Trump 2024
We’re running out of time to prove to Americans that our legal system can deliver impartial justice
There’s no more definitive indictment of the U.S. legal and political systems than Donald Trump’s entry into the 2024 presidential race a week after his Big Lie candidates crushed Republican hopes and dreams nationwide.
You would think by now there would be another way to use the words “Trump” and “indictment” in the same sentence. But no.
All through his seven-plus years on the national political stage, Trump has demonstrated that, despite our fondest fantasies about American exceptionalism and peaceful transfers of power, some people are above the law, the Constitution and the oaths they take to hold high office. He escaped Senate convictions on two House impeachments that would have barred him from running again, and now is trying to run out the clock on so many lawsuits and investigations that someone should invent an app to track them.
The delay tactics keep coming from the former president, his allies and the lawyers risking their licenses and reputations for him – frivolous lawsuits; a special master request; recurring and dubious executive privilege claims; fighting subpoenas to testify before grand juries and congressional committees, including the House panel investigating a Trump mob’s deadly attack on the Capitol on Jan. 6, 2021.
‘Too big to jail’?
The “clock of justice,” as Harvard constitutional law professor emeritus Laurence Tribe and former federal prosecutor Dennis Aftergut call it, is ticking. We’re running out of time to prove to Americans that our legal system can deliver impartial justice.
“The public is deeply cynical, believing that we have become a nation in which some are too big to jail,” former
AFL-CIO political director Michael Podhorzer said in a post-election email about the impact of this year’s Jan. 6 committee hearings and President Joe Biden’s message that democracy was on the ballot.
In Research Collaborative focus groups during the hearings, he said, “we heard a growing impatience” for accountability and convictions.
Jan. 6, Mar-a-Lago, Georgia cases
To date, the Justice Department has arrested nearly 900 people in connection with the attempted Jan. 6 insurrection. About half have pleaded guilty and 23 have been convicted at trial.
Government attorneys are gradually moving up the ladder to those who planned, enabled and fueled the larger scheme to keep Trump in office despite his loss, including, potentially, Trump himself. But that’s the most complicated of the former president’s many legal entanglements. How and when it will end is uncertain.
Trump could face his first major reckoning in Atlanta, where Fulton County District Attorney Fani Willis is investigating the well-documented efforts he and his allies made to reverse Biden’s 2020 Georgia win. She’s looking into election fraud, conspiracy, racketeering and other potential offenses, and has said that she’s aiming for a decision on charges by the end of the year.
Norman Eisen, a former White House ethics counsel and House impeachment special counsel, is lead author of a new
Brookings Institution report on the Willis investigation. At a recent Defend Democracy Project webinar, he said the facts of the case and the laws of Georgia suggest a “substantial likelihood” that Trump and others will be indicted: “This is the greatest legal peril that Donald Trump has faced in his ... more than half-century of skirting on the edge of the law. We believe he will be charged.”
The most straightforward federal case against Trump arises from the presidential documents, some of them extremely sensitive, that he moved to his Mar-a-Lago golf resort in Florida. The National Archives and the FBI have been trying to get them back since Trump left the White House, and staged an August raid to retrieve them. The Justice Department is looking at whether Trump violated the Presidential Records and Espionage acts.
New York University law professor Ryan Goodman, founding co-editor-inchief of the national security website Just Security, said it’s clear from a review of all past Espionage Act prosecutions that Trump’s conduct is “even more egregious” than in those cases. “Aggravating factors” such as how long it took to recover the documents, the volume (over 300), their nature (some highly sensitive) and the repeated warnings Trump received will likely force the department’s hand, he said at the Defend Democracy event.
Attorney General Merrick Garland named a special counsel Friday to handle the Jan. 6 and Mar-a-Lago criminal investigations and said it won’t slow them down.
Aftergut, the former federal prosecutor, was at Harvard law school with Garland. He told me he has “a heavy dose of faith” that he’ll get the job done. “You cannot stand for the rule of law and not indict Trump for Mar-a-Lago,” he said.
The Jan. 6, Mar-a-Lago and Georgia cases are huge but hardly the whole picture. Plausibly impeachable offenses from Trump’s tenure keep emerging.
Former White House chief of staff John Kelly said in a New York Times story this month that Trump tried numerous times to sic the Internal Revenue Service on people he viewed as enemies. Top targets: James Comey, the FBI director fired by Trump, and Comey’s deputy, Andrew McCabe. Kelly told Trump the idea had serious moral and legal problems, according to The Times.
Trump’s past vs. his future
Weaponizing the IRS against perceived enemies was in the abuse of power impeachment article against President Richard Nixon, so yes, that would have been bad. And yet, after Kelly left, the IRS subjected Comey and McCabe to highly intrusive tax audits. What are the odds?
So it goes as outrages from Trump’s past collide with his increasingly dim political future. If only the law treated him a fraction as ruthlessly as he vowed in his announcement to treat others.
Republicans, of course, have only themselves to blame for being mired in the sludge and sleaze of Trump and his hand-picked slate of election-denying midterm losers. Most of them gave him a pass even after Trump unleashed a violent mob to stop the electoral vote count that would finalize Biden’s win, and they had to flee for their lives.
At the time, in February 2021, a furious Senate GOP leader Mitch McConnell said it would be unconstitutional to convict Trump because he had already left office. But he added: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”
The appropriate response then, given Trump’s history of evading consequences, would have been “good luck with that.” That’s still true. Tragically.