The Rule of Law Was On the Ballot. It Lost.

Trump avoids criminal accountability

The justice system and the rule of law were on the ballot on Tuesday. They lost.

Never in our history has a criminal defendant had the power to end his own prosecutions. The idea that a defendant could be judge and jury in his own case is repugnant to the rule of law. But that’s precisely what happened with Trump’s victory.

Our justice system requires that all are equal before, and governed by, the law. There isn’t one set of rules for the rich, white, and powerful, and a different set for everyone else. Prosecutions are not based on political considerations and the criminal justice system is not used as a political weapon. 

These are not mere platitudes; they are fundamental to our democracy. To be sure, these ideals have been applied imperfectly throughout our history. We sometimes fall short. But until recently there was at least agreement, across both political parties, as to their critical importance. That changed with the rise of Donald Trump.

Regardless of the outcome, Tuesday’s election was going to make history. If Harris won, we would have had the first woman president and first with both black and Asian heritage. With Trump’s victory, we have the first president facing criminal indictments and who is already a felon.

Trump’s victory means he is unlikely to be held accountable for any of his alleged criminal misconduct. That’s a severe blow to the ideal of the rule of law. As a former prosecutor, it both saddens and infuriates me. And a second Trump presidency imperils other fundamental aspects of our justice system as well.

Trump making his victory speech on election night

The Federal Criminal Cases

Special counsel Jack Smith has brought two federal indictments against the former president. The case in Florida, charging Trump with improper retention of classified materials and obstruction of justice, easily could have gone to trial by last spring. But a Trump-appointed and Trump-friendly judge dragged her heels, taking months to make relatively routine decisions, and then dismissed the case altogether. Smith’s appeal of that dismissal is pending.

The D.C. federal case charges Trump with conspiracy and obstruction of justice for seeking to overturn the 2020 election. Timely prosecution of that case was derailed by the battles over presidential immunity, which are ongoing in the wake of the Supreme Court’s misguided immunity decision.

The justice system has been severely tested by these cases and the unique challenges of prosecuting a former president. Trump’s success in delaying the prosecution of both cases until after the election is a failure of that system. But with time the dismissal of the Florida case likely would have been reversed, and the D.C. case was slogging ahead as the judge worked to resolve the immunity issues. Justice for Trump in these cases had been delayed, but it had not yet been denied.

But now, as president, Trump will have the power to have both cases dropped. He has already promised to fire Jack Smith “within two seconds” if elected. Trump can order his acting attorney general to fire Smith, drop the appeal in Florida, dismiss the D.C. case, and dissolve the special counsel’s office. There will be nothing to stop him.

The special counsel regulations provide that the attorney general may fire a special counsel only for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.” But assuming Trump and his new attorney general even care about following the regulations, which they probably won’t, they could simply say that the “good cause” is their determination that the prosecutions were legally inappropriate.

The federal prosecutions are dead. There’s no question about it.

What Smith Could Do Prior to the Inauguration

Trump may not need to bother getting rid of the special counsel himself. There are already news reports that Smith is in consultation with the Justice Department about how to wind down his cases before Trump is inaugurated. Reportedly this is based on the longstanding DOJ policy that a sitting president cannot be prosecuted.

Rather than dismiss the cases altogether, Biden’s DOJ presumably could say they are just pausing prosecution of the cases until Trump is out of office. Of course, Trump’s DOJ would then dismiss them as soon as he is in office - but there’s no reason Biden needs to do that for him. I say make Trump take the political heat (if any) for dismissing his own prosecutions.

There’s also the matter of Trump’s two co-defendants in the Florida case. Theoretically those prosecutions could continue without Trump. But of course, once in office Trump will simply order the cases dismissed and/or pardon his co-defendants. But again, I don’t see the need to do that for him by dismissing the cases prior to his inauguration.

If Smith were ever planning to indict Trump’s co-conspirators in the D.C. case, he could do that now as well. That would get it on the public record that the grand jury believed they deserved to be indicted. Once again, once Trump is in office he will simply have the cases dismissed and/or pardon the defendants. But if there are charges that Smith intended to bring, why not bring them now to inform the public and make Trump take the political heat for having them dropped?

Finally, the special counsel regulations provide that a special counsel must submit a confidential report to the attorney general when he concludes his work. I’m hoping Smith will spend the next two months writing a report for Merrick Garland. Garland can then make the report public, as has been done with other special counsel reports. I don’t know how much more information would be in the report that we don’t already know, but it could be considerable. At least such a report would fully document the charges and evidence for historical purposes.

The State Criminal Cases

Trump will have somewhat less control over his state prosecutions but will still be able to avoid any accountability. In New York, he has been found guilty on thirty-four felony counts of making false business records. He has moved to dismiss the case based on the Supreme Court’s presidential immunity decision, and Judge Merchan said he will decide that motion by November 12. Assuming he does not dismiss the case, sentencing is set for November 26.

Even if Merchan sentences Trump to prison time, he would almost certainly allow him to remain free pending appeal. If the convictions are upheld on appeal, the execution of that sentence would at a minimum have to be postponed until he was out of office in 2029. A state will not be allowed to jail the sitting president.

Trump’s attorneys are reportedly preparing to argue that the case should be dismissed entirely, based on Trump’s election, or at the very least that sentencing should be postponed until he is out of office. His former attorney general Bill Barr released a statement calling on all the federal and state prosecutors to dismiss all the cases immediately. Barr argues the people have spoken and have chosen Trump to lead the country despite knowing about the criminal cases, and for the good of the country it is now time to drop the prosecutions.

This all puts Judge Merchan in an interesting and difficult spot. I’m not sure what he will do. I doubt that DA Bragg will be moved by arguments that he should dismiss the case. But again, even if Merchan moves forward with sentencing, enforcing that sentence — whether it’s prison, home detention, community service, or fines — will have to wait until appeals are exhausted and Trump is out of office.

In the Georgia prosecution Trump was charged along with eighteen other defendants for seeking to overturn the 2020 election results in that state. Georgia prosecutors have done a pretty good job on their own of helping Trump avoid his day in court. The unwieldy case is currently bogged down over appeals resulting from the DA’s alleged conflict of interest based on her romantic relationship with the lead prosecutor she hired for the case. This “own goal” by the DA led to substantial delays and no trial date is in sight.

If the case ever gets to trial — which may be a big if — Georgia will not be allowed to include the sitting president in that trial. It could, however, proceed with the prosecution of the other defendants, and Trump should not be able to stop it. That would at least provide another public airing of the efforts of Trump, Rudy Giuliani, Mark Meadows, and the other co-conspirators to overturn the 2020 election, even if Trump is not at the defense table. Theoretically Trump could then be tried alone after he leaves office, but who knows how much appetite there would be at that point to try a ten-year-old case a second time.

Weaponizing the Justice System

Another fundamental principle of the rule of law is that criminal prosecutions are walled off from political considerations. Under the Biden administration, for example, that meant indictments and prosecutions of prominent Democrats such as former New Jersey senator Bob Menendez, Congressman Henry Cuellar, and New York City mayor Eric Adams proceeded, with no interference from the White House. This is also why investigation and prosecution of Trump was handed over to a special counsel once Trump declared his candidacy, to provide an additional layer of insulation from politics.

Harris, herself a former prosecutor, recognizes the bedrock importance of this principle. So does President Biden, who refused to intervene even in the politically-motivated prosecution of his own son. (Can you imagine President Trump allowing a prosecution of Don Jr. to proceed?)

Trump has shown no regard for the need to keep politics out of prosecutions. He routinely threatens to use the justice system to pursue political opponents, whom he has called the “enemy within.” During his last presidency he ignored Justice Department procedures to hand out presidential pardons to fellow Republicans and political cronies, including those who committed crimes on his behalf. He calls January 6 rioters who stormed the Capitol and assaulted law enforcement officers “patriots” and “hostages” and has vowed to pardon them. He has threatened to prosecute Joe Biden.

Conservatives like to complain that the justice system has been weaponized against them, but that’s merely a talking point for them to wield against cases they don’t like. The Biden-Harris administration and Attorney General Garland have followed the rule of law. Only one presidential candidate has routinely threatened to use the justice system as a political weapon – and it wasn’t the former prosecutor Harris.

We will have to be on guard to see how this plays out. Trump’s former Attorneys General Jeff Sessions and Bill Barr, for all their flaws, at least provided some guardrails to prevent Trump from prosecuting his enemies. It’s not clear that similar guardrails will be in place during the new Trump administration. He’s probably going to surround himself with people much more willing to follow his worst impulses.

A Compliant Judiciary

A second Trump presidency threatens the rule of law in yet another way. The principle that no one is above the law was dealt a severe blow by the Supreme Court’s decision on presidential immunity. That damage unfortunately has already been done, by a Court majority that included Trump’s three appointees. 

In his second term, Trump will have the opportunity to appoint many more judges to the federal bench. Supreme Court justices Alito and Thomas may retire to allow Trump to replace them with younger, stalwart conservatives. This will mean more judges who are more concerned with expanding Executive power and cutting back on government than with preserving the rule of law. Trump will have the opportunity to leave his lawless imprint on the judiciary for decades.

Where We Go From Here

Trump’s victory leaves us with a president who knows he will enjoy immunity for many of his lawless actions — a very dangerous situation when that president is Trump. He has managed to avoid accountability for his own past criminal behavior. He may fulfill his pledges to pardon the Capitol rioters and other supporters while using the criminal justice system to punish political opponents. And with a Republican Senate happy to cooperate, he can further stack the federal courts with judges who will bend to his will.

These are characteristics of authoritarian regimes, not the United States of America. 

I’m sorry to sound so dark, but this was a dark day for the rule of law. Something fundamental to our country and our democracy was lost on Tuesday. The task now is to work to see if we can get it back.