Machiavelli famously proclaimed that “politics is the art of the possible.” Indeed, it is. It is possible that Donald Trump, having been indicted on 91 felony counts in four jurisdictions, will not only get away scot-free but be re-elected president of the United States. The great hope of Trump’s opponents was that the courts would somehow thwart his return, and they may yet. But, as Justice Benjamin Cardozo famously said, in another context, the criminal can “go free because the constable has blundered.” Constable Merrick Garland and his Special Counsel, Jack Smith, have blundered, and Trump may walk on his federal indictments.
Look at the facts:
Trump learned from his mentor, Roy Cohn of McCarthy-era fame, how delay could derail a civil suit or a criminal investigation. Federal prosecutors had to know on Day One that Trump’s lawyers would try to run out the clock. Had Attorney General Garland not waited almost three years to appoint a special counsel, much of this would have been resolved by now. Instead, the 71-year-old former jurist whose Supreme Court nomination never saw a vote because of an exercise of raw political power was caught unawares by raw political power. He wanted to prosecute January 6 from the bottom up, starting with the MAGA goons with the flagpole spears and bear spray. This consumed tremendous time when he had more than cause after the failed second impeachment to appoint a special counsel. Instead, he let Trump take advantage of the delay.
In February 2021, after Trump was acquitted in his second impeachment trial, Senate GOP Leader Mitch McConnell, who is now endorsing Trump, said the former president was guilty of a ‘disgraceful dereliction of duty’ and ‘practically and morally responsible for provoking’ the violence unleashed on the Capitol. Yet, neither Garland nor later Special Counsel Smith moved to indict Trump under 18 USC Section 2383 for inciting an insurrection. This provision of law carries with it the penalty of both disqualification from ever holding office and jail. Faced with the risk of a significant prison sentence, it’s at least plausible that Trump might have cut a deal and agreed not to run as part of a plea bargain. We’ll never know because they eschewed filing this charge.
Smith could have brought the purloined documents case in Washington, D.C., but he didn’t. He knew that by filing in Florida, the repository of the pilfered papers, rather than the capital where they were taken, he risked drawing a Trumpy judge. And did he ever! Aileen Cannon, whom the Eleventh Circuit had twice rebuked for her conduct of the search warrant of Mar-a-Lago, could hardly be doing more for Trump if she wore a MAGA hat. Combine her lack of interest in a speedy trial with a favorably disposed jury, and an acquittal or mistrial seems entirely possible—assuming it ever gets to the point. D.C. is where the case of the documents should have been prosecuted. Smith would have benefitted from better judges and a jury pool from heaven. Yes, Garland and Smith would have been accused of forum shopping, but so what? Nothing will mute the critics. D.C. was a venue that could have yielded a victory for the prosecution. Even a few Republicans who managed to get on the jury would likely have been open-minded towards Smith. Washington is, after all, where even Nikki Haley trounced Trump.
Once Smith chose a South Florida venue, he over-prosecuted his case. He did not need to join Trump’s helpers, Walt Nauta, his valet, and Carlos de Oliveira, a Mar-a-Lago manager, as defendants. It only complicated discovery and delayed the case. Look, Judge, I only do pool maintenance at Mar-a-Lago. There are a million pages of discovery. I need time. If Smith thought the indictments of these two underlings would get them to flip, and produce valuable evidence, he seems to have been mistaken.
Smith wanted to get to SCOTUS fast in December to put the immunity issue to rest. So, he petitioned the Supreme Court to bypass the D.C. Circuit Court of Appeals, hoping to try the January 6 case before the election. The career prosecutor’s mistake was that he was too shy or ceremonious to tell the Court in his brief why he was in such a hurry. He might have said he wanted to let voters know whether a presidential candidate was a convicted felon. He lost about three or four months as the case became snarled in a procedural freeze. The justices knew why he wanted immediate attention, but they were inclined to snooker him. Diffidence is always misplaced in a prosecutor. A flat-out declaration that an early decision was essential may not have moved the likes of Justice Samuel Alito, but it couldn’t have hurt.
Why didn’t the government bring the 14th Amendment disqualification case to federal court where there wouldn’t be an issue of a state denying a candidate for federal office a place on the ballot? Garland/Smith never took a position on disqualification, but had they, it seems that they might have had a shot. Despite the Court’s unanimous ruling that Colorado wrongly ejected Trump from the ballot and ruled that states can’t decide on the disqualification of federal office seekers, the three Democratically appointed justices and Amy Coney Barrett were open to the question of whether a court might have the authority to disqualify and no just Congress. Again, it was worth a shot.
Pulling back from Garland and Smith for a moment, why are so many Democrats still so naive about the Supreme Court of the United States (SCOTUS)? The conventional wisdom was that since SCOTUS rejected Trump’s ludicrous arguments in the 2020 election, they might be tough on him this time. But SCOTUS is a political court dominated by six hard-right Republicans, three of whom were appointed by Trump himself. I get better odds at the Bellagio. The liberal legal pundits are all saying that Trump has no presidential immunity in the January 6 case and that even the Roberts Court will affirm that the 77-year-old can be tried. Maybe. But after their most recent performance in the Colorado ballot case, the justice of which makes Bush v. Gore look like Brown v. Board of Education, I would predict that SCOTUS either says a president has total immunity for acts in office, including Trump’s actions between Election Day 2020 and January 6, 2021 or else throttles the prosecution by remanding the case to Federal District Court Judge Tanya Chutkan not to begin trial but for a (likely drawn-out) hearing into whether trying to overturn an election is within the scope of a president’s official duties.
Elections ordinarily should be determined by voters, not courts with their thumb on the scale. Bush v. Gore showed that it’s open season on norms and precedents.
Only one justice who ruled on the infamous 2000 case is still on the Court. But Clarence Thomas won’t recuse himself despite his wife cheerleading the events of January 6 and contacting key players. A Trump lawyer cynically described Thomas as “key” to Trump’s plan to delay Congress’ certification of President Joe Biden’s victory after the 2020 election. On December 31, 2020, a Trump attorney, Kenneth Chesebro, wrote an email concluding that a favorable order from Thomas was their “only chance” to prevent Congress from counting electoral votes for Biden from Georgia. Disclosure of the email led to calls for Chesebro’s disbarment. When Justice Sonia Sotomayor stated she felt a “stench” in the Court, she could not have spoken more advisedly.
Benjamin Franklin famously described the new nation as “a republic if you can keep it.” What is interesting about this election is that it is as much about what the voters say they don’t care about as what they say they do care about. Gallup reports that the democracy issue is a nothing burger, cited by just 3 percent as the country’s most critical problem. Most Americans do not seem to care that the man who said he could shoot someone on Fifth Avenue without consequence can orchestrate an insurrection and still become the President because most people don’t care to hold him accountable. Those prosecuting the federal case have raised considerable doubt that they can prevail.
