Donald Trump’s most vital campaign did not involve his political consultants, the hysteria of his rallies, the paranoid TV spots about migrant murderers and transgender bogeymen, his blathering on “bro” podcasts or the prancing of a hopped-up Elon Musk. Nor was it about a garbage can in the ocean, eating pets or divine intervention.
Trump’s vulnerability was always at the forefront of his mind. He knew he could have been eliminated at crucial moments before election day. He was anxious about more than an assassination. He understood that his most threatening adversary was the criminal justice system. Trump had to get away with his crimes to survive. The making of the president required the unmaking of justice.
Trump’s bravado excited his Maga faithful even as it masked his furtive, frantic and desperate efforts to escape legal judgment. He committed new crimes to obstruct justice, to hide evidence for which he was additionally indicted. In all, he faced 54 felony charges apart from the 34 felony counts on which he was found guilty in the election and business fraud case involving hush money in New York. Among the federal charges against him were conspiracy to defraud the American people of a free and fair election, conspiracy against rights and corruptly concealing and destroying classified defense documents under the Espionage Act. In the Georgia state election interference case, he was indicted under the Racketeer Influenced and Corrupt Organizations (Rico) Act along with 18 co-conspirators.
The first result of Trump’s re-election was the removal of his existential threat. If he had lost, he would have faced his trials and their consequences for the rest of his life. But on the morning after, the justice department informed the press that it would seek to close the cases against Trump. Under the policy of a 2000 memo from the justice department’s office of legal counsel, a prosecution of a president would “unduly interfere in a direct or formal sense with the conduct of the presidency”. The old memo is Trump’s get out of jail card.
That document was a revised version of a post-Watergate OLC memo issued in 1973. The 2000 memo concurred with the conclusion of the earlier one: “In light of the effect that an indictment would have on the operations of the executive branch, ‘an impeachment proceeding is the only appropriate way to deal with a President while in office.’”
But the OLC memo is just a policy memo, not a judicial ruling, which was not updated to account for the new reality of alleged crimes of a former president. After Trump, it was complacently left to stand. Now that he has been elected again, the policy is being applied to the unanticipated and unique situation of years long ongoing cases to shutter the rule of law. Trump will be scot-free.
The hammer blows that would have shattered his campaign never came. The gavel laid flat on the bench. As Trump eluded trial after trial, their looming shadows faded. If he had faced the music, he would have been convicted as an insurrectionist, thief of national security secrets and obstructer of justice and he would have been sentenced to prison months before the election. His strategy was justice delayed is justice denied.
Instead of Trump’s dominant message being his war against the law, he was permitted to fill the space with variations on the racist great replacement theory. “Poison in the blood” was heard rather than “Ladies and Gentlemen of the jury”.
Trump’s strongman image inflated every time he beat the process. Whenever he delayed justice his legend grew. Every time he should have been subject to the law and wasn’t, he appeared too big to fall. The inability to bring him to trial made the system seem weak and suspect. The law was anemic; he was indestructible. No man was above the law – with one exception. Without the presentation of the evidence in a courtroom setting and the verdict of a jury, he was able to sow doubt with the public about the charges and present himself as a political martyr. He played to the galleries he assembled, not juries empaneled under the law.
Despite Trump’s incessant motions and filings to delay and distract in his court cases, he did not hold back the wheels of justice all by himself. He alone could not fix it. For Trump to succeed, justice had to fail. It did not fail passively. He was rescued from judgment by four people, acting sequentially on wholly different motives, but leading to the same conclusion of letting the culprit run loose. Without his enablers, Trump would not have been protected. He confounded, thwarted and escaped the law because of the perverse decisions of the Senate Republican leader, Mitch McConnell, the attorney general, Merrick Garland, the chief justice, John Roberts and the US district court judge Aileen Cannon.
None of the four had a more sustained personal relationship with Trump than McConnell. From his proximity he came to regard him as a “despicable human being”, “stupid as well as being ill-tempered”, with “complete unfitness for office”, as he told an oral historian, according to his authorized biographer, Michael Tackett, in The Price of Power. McConnell stated that Trump’s defeat in 2020 “only underscores the good judgment of the American people. They’ve just had enough of the misrepresentations, the outright lies almost on a daily basis, and they fired him. And for a narcissist like him, that’s been really hard to take.”
After Trump was impeached for the insurrection on January 6, McConnell wavered on voting guilty. If Trump were to be found guilty, he could never again run for federal office. McConnell fell back on his political instinct that Trump was utterly discredited, though there was a risk that he might support Maga candidates to primary Republican senators who voted guilty as revenge. Before the vote on 13 February 2021, McConnell declared Trump “practically and morally responsible for provoking the events of that day”, but sidestepped convicting him by asserting that the penalty could not be applied because Trump was no longer president.
McConnell pointed out that Trump would be held accountable in criminal trials. “But this just underscores that impeachment was never meant to be the final forum for American justice,” he said.
“Indeed, Justice [Joseph] Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were – and this is extremely important – ‘still liable to be tried and punished in the ordinary tribunals of justice’. Put another way, in the language of today: President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn’t get away with anything yet – yet. 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.”
Joe Biden appointed Merrick Garland as his attorney general. Garland had a sterling and bipartisan record. He had sat as a judge on the US court of appeals for the District of Columbia circuit since 1997, including seven years as chief judge, been a prosecutor at the justice department, notably handling the Oklahoma City bombing case and had a reputation for integrity and decency. He was extraordinarily collegial with Republicans. He had served as a moderator on at least 10 panels at the Federalist Society.
When President Obama nominated him for the US supreme court, Garland seemed the ideal candidate. McConnell rejected him outright, not because of his qualifications, but because he played for keeps. McConnell wanted the seat available for a Republican president to fill, and it was filled by Trump, who followed the appointment of Neil Gorsuch with Brett Kavanaugh and Amy Coney Barrett off the Federalist Society list. McConnell felt he had used Trump for his own purposes. Then, when Biden named Garland to head the justice department, McConnell voted for his confirmation. It would be up to Garland to deal with Trump’s crimes.
On his first day at the Department of Justice, in his speech to its employees, Garland explained that he had in his “DNA” the “norms” upheld by his hero, Edward Levi, the post-Watergate attorney general, a moderate Republican who acted above partisanship. “That there not be one rule for Democrats and another for Republicans”, said Garland. And that was the “only way we can succeed and retain the trust of the American people …”
Garland was punctilious in his belief that pursuing Trump reflected a partisan impulse. “The Justice Department’s painstaking approach to investigating Trump can be traced to Garland’s desire to turn the page from missteps, bruising attacks and allegations of partisanship,” the Washington Post later reported. “Inside Justice, however, some lawyers have complained that the attorney general’s determination to steer clear of any claims of political motive has chilled efforts to investigate the former president. ‘You couldn’t use the T word,’ said one former Justice official briefed on prosecutors’ discussions.”
Garland’s hero-worship of Levi was historically misplaced as a guide to his own role. Levi presided after the Watergate affair was wrapped up. But events had not cast Garland as Levi but potentially to be Judge John Sirica, who broke the conspiracy open. Garland’s prosecution of the mob that attacked the Capitol was based on the theory of working from the bottom up. Those down the chain would then provide evidence against the crime boss.
But Garland operated on the wrong theory of the case. He suffered a failure of imagination, unable to grasp he was dealing with an attempted coup, not merely a destructive riot. The evidence of the coup was clearly before him. Trump’s fake elector scheme to prevent certification of the election occurred in plain sight in real time as it was happening. Trump’s tape of pressuring Georgia election officials to forge ballots was publicly revealed three days before January 6.
In the sort of investigation that Garland was conducting it might take months, if not years, for a low-level mafioso to wear a wire that might produce such incriminating evidence. Garland vowed to go after “all January 6th perpetrators, at any level”, but as he racked up hundreds of cases against the Capitol mob he shied away from acting against the kingpin.
On 12 May 2021, Liz Cheney was removed as chair of the House Republican conference. She had voted for Trump’s impeachment and favored a congressional investigation into the January 6 insurrection. Those opposed to the rulings of the courts about January 6, she said, were “at war with the constitution”.
A week later, on 19 May, McConnell refused to support the creation of a bipartisan joint committee to investigate. He claimed it would be “slanted”, and there were “no new facts”. The House Republican leader, Kevin McCarthy, rejected cooperation with any new probe. The House committee included Liz Cheney and Adam Kinzinger, from Illinois, as the two Republicans. They were both censured by the Republican National Committee, which passed off the insurrection as “legitimate political discourse”.
On 28 March 2022, the US district court judge David Carter, in ruling that Trump’s legal adviser John Eastman must turn over his relevant emails to the committee, stated that it was “more likely than not” that he and Trump “corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021”, and that they staged “a coup in search of a legal theory”.
After Trump’s former senior aides refused to honor the committee’s subpoenas, they were referred to the DoJ for prosecution for contempt of Congress. Garland would not act.
“Attorney General Garland, do your job so we can do ours,” beseeched Representative Elaine Luria of Virginia on 1 April. “We are upholding our responsibility. The Department of Justice must do the same,” echoed Representative Adam Schiff of California.
“Mr Meadows and Mr Scavino unquestionably have relevant knowledge about President Trump’s role in the efforts to overturn the 2020 election and the events of January 6th. We hope the Department provides greater clarity on this matter,” the committee replied. But the justice department declined to indict Trump’s former chief of staff Mark Meadows and social media director Dan Scavino.
At last, in April, after Carter’s decision and the January 6 committee members’ public criticism, the FBI launched an investigation into the fake elector scheme. It had taken Garland 15 months after assuming office to begin exploring the coup as something beyond a riot.
On 8 August, FBI agents with a warrant entered Trump’s residence in Florida, Mar-a-Lago, to seize classified national security material he had secreted there and refused to return to the government after longstanding multiple requests.
On 15 November, Trump announced his presidential campaign. Three days later, Garland appointed Jack Smith, a DoJ prosecutor, as the independent special counsel to investigate both January 6 and the government documents cases. It was 21 months since Garland had become attorney general. He had fervently sought to avoid any taint of partisanship, but because of the delay the special counsel now worked under the color of a campaign.
Smith worked swiftly. His indictments of Trump in the documents case came on 9 June 2023, following by additional ones for obstruction on 27 July. Then, on 1 August, he indicted Trump for January 6. The road to oblivion began.
The US district court judge Tanya Chutkan set a trial date for 6 March 2024. Trump’s lawyers filed numerous motions to delay, including the claim that as president Trump enjoyed complete immunity over what were official acts. Chutkan rejected the motions as preposterous, but Trump’s stalling tactic worked, as she had to move back the trial date while a panel of three judges on the US court of appeals considered Trump’s immunity claim.
Smith’s response on 23 December 2023 to Trump’s filing must rank as the most intriguing document in the investigation. It received little attention. In it, the special counsel suggested a series of crimes that “a President” might commit with impunity on the basis of Trump’s immunity claim. He could not accuse Trump of crimes for which he lacked the evidence. Yet his filing’s hypotheticals seemed to describe grave offenses.
Trump’s “sobering” immunity theory might cover “a President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary …”
Did the special counsel have any evidence that pointed to any of those crimes? He presented them not as suspicions, but as logical extensions of Trump’s radical theory – “in each of these scenarios, the President could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as Commander-in-Chief; or engaging in foreign diplomacy.”
The three-judge appeals court panel ruled expeditiously against Trump on 6 February that “any executive immunity that may have protected him while he served as President no longer protects him against this prosecution”.
Trump appealed to the supreme court. It took its time to hear arguments on 25 April. Then, it waited until 1 July, the last day of its term, to issue its decision that Trump as a former president and private citizen had a presumption of “absolute immunity” for his “official actions”. Roberts’s opinion was a restatement of Smith’s wild hypothetical version of Trump’s immunity theory. The prosecution was ordered to tailor its indictment on those grounds, deleting anything to do with Trump’s “official actions”.
Roberts had positioned himself as a high-minded institutionalist, whose principal concern was the reputation of the court as Olympian in its deliberations. But the curtain had been pulled back to reveal a fast and furious trade in cash gifts and luxury vacations lavished by self-interested Republican donors on justices Clarence Thomas and Samuel Alito. Ginni Thomas, a veteran far-right activist, was a cheerleader for the January 6 insurrection, especially the fake elector scheme in Arizona. Martha Ann Alito flew insurrectionist flags at the Alito house.
Despite Roberts’s pose, his main contributions as a jurist were to trash the crown jewel of the civil rights movement, the Voting Rights Act, and to eviscerate campaign finance reform through the Citizens United decision, which opened the sluice gates for unregulated big money. Despite his rulings that transparently empowered the Republican party, he fretted about criticism of the court as having any partisan leaning.
The conservative majority adhered to the dogma of “originalism”, claiming divination of the inner thoughts of the founders as a kind of legal scriptural fundamentalism. Yet Roberts’s unprecedented ruling on immunity established a charter for the kind of unaccountable authoritarian presidency that the founders sought to prevent in the constitution. His opinion severed the conservatives from their originalist mythology to shield Trump. At the entrance of the marble temple of the supreme court are engraved the words, “Equal Justice Under Law”, which are now an enduring tribute to its hypocrisy.
Following the court’s new guidelines, Smith filed his new brief on 2 October. While it cut out some of the most dramatic evidence against Trump involving his pressure on Vice-President Mike Pence to toss out the legal electoral college votes and his manipulation of the justice department, the filing was still damning. It included the story of Trump’s response to being told Pence was endangered by the mob. “So what?” he replied. But the possibility for a trial before the election was by now long closed.
In the documents case, the US district court judge Aileen Cannon ruled again and again to Trump’s advantage. She is a thoroughly processed product of the Federalist Society transmission belt, from law school to the federal bench. Cannon was on the Federalist Society list when Trump ticked her off for appointment. She is, as the communists used to say, a reliable.
In decision after decision, Cannon’s reasoning was murky, her logic twisted and her rulings tilted. She denied Smith’s request for a December 2023 trial date, moving it to 20 May 2024 after the Republican primaries. After seemingly endless motions in which she created every obstacle for delay, on 15 July, the first day of the Republican national convention, she dismissed the entire case on the absurd notion that the justice department had no authority to appoint a special counsel “threatening the structural liberty inherent in the separation of powers”. That exact argument had been signaled in Justice Clarence Thomas’s opinion in the presidential immunity case issued two weeks earlier.
Smith’s appeal on 26 August noted that the DoJ had been naming special counsels for 150 years and that the Congress had passed four enabling pieces of legislation and provided funding for the office. But, again, Trump had already succeeded, with the timely aid of a helpful judge, in moving any trial beyond the election. A month before, in October, the Trump campaign leaked that Cannon was under consideration to succeed Garland as attorney general.
By acting as the indispensable servants of Trump’s lawlessness his helpers destroyed what they most venerated. McConnell had confided that “the Maga movement is completely wrong” and that President Ronald Reagan “wouldn’t recognize it today”. Just before the election, however, ever the myopic cynic, he remarked, “We’re all on the same team now.” Garland, by his desire to avoid being seen as partisan, created the critical space for Trump to re-emerge. Garland inadvertently tarnished the rule of law. Roberts, anxious about the court’s reputation, has shredded its legitimacy. But for Cannon, the Maga apparatchik, all is perfection.
Trump’s squalor goes on. Smith can write a final report to be released before Trump takes office. Garland can make it public as his ultimate gesture. The Georgia Rico case has been on ice as a judge determines whether the prosecutor, Fani Willis, can continue in her role.
If and when the case proceeds, Trump as president cannot be tried until his second term ends in 2029. But his 18 co-defendants, including Meadows, Eastman, Rudy Giuliani, and former acting attorney general Jeffrey Clark would face drawn-out trials that highlight Trump’s plot. It’s possible, however, that the Georgia judge overseeing the case may simply dismiss it in light of Trump’s re-election. In New York, on 26 November, Trump will appear in a courtroom to be sentenced for his 34 felonies falsifying business records to cover up hush-money payments during the 2016 campaign that also factors in his 10 counts of contempt of court.
In Arizona, the state fake elector case there of 11 Arizona Republican officials and seven former Trump associates on nine felony counts of conspiracy, fraud and forgery, including Giuliani, Meadows, Eastman and Trump lawyer Boris Epshteyn, is scheduled for trial on 5 January 2026. The indicted former Trump attorney Jenna Ellis has flipped to cooperate with the prosecution.
Trump cannot pardon his co-conspirators at the state level. They are left to their fates. Meanwhile, he has pledged to pardon the imprisoned felons from the mob that attacked the Capitol on January 6, whom he calls “hostages”. The pardons he signs will be symbols of his contempt for the law.
Trump himself has escaped into the White House, which the US supreme court has declared the citadel of official immunity. Hail the Criminal-in-Chief!
Sidney Blumenthal, former senior adviser to President Bill Clinton and Hillary Clinton, has published three books of a projected five-volume political life of Abraham Lincoln: A Self-Made Man, Wrestling With His Angel and All the Powers of Earth
