The son of a bitch got away with it. You and I may not be above the law, but Donald Trump is.
Democracy lost on November 5th. The rule of law lost on November 25th. The two defeats will be linked in the history books as scholars ponder the question of how this happened. How could the world’s oldest democracy elect a convicted felon who tried to stay in office by corrupt means to another term as president?
Jack Smith did what he had to do yesterday. I think it was better to move to dismiss before the Kaiser of Chaos returns to office. It enabled Judge Chutkan to dismiss the case without prejudice, which means that it could theoretically be refiled after Trump leaves. The chances of that are slim and none and slim just petitioned for a pardon for shitting on the constitution.
A more tangible advantage to this timing is that Team Smith will be able to file a report instead of being frog marched out of DOJ by vengeful Trumpers. Merrick Garland will have to approve its release, so we know it won’t happen immediately. The Attorney General should have a new middle name: Merrick Dilatory Garland. His slowness to move against Trump is one of the reasons we’re in this mess.
Jack Smith is a by the book prosecutor. This dismissal is the by the book move. Unfortunately, the Insult Comedian not only hasn’t read the book, he’s ready to burn it as well as the DOJ down. His personal lawyers will be in DOJ leadership positions come January 20th. His backup plan as AG is just as corrupt as Matt Gaetz. Pam Bondi will follow orders. It remains to be seen how far they’ll go but investigations can devastate people financially even if they don’t result in convictions. Just ask Andrew McCabe or Pete Strzok.
There’s a lot of blame for this fiasco to go around. None of it belongs to Jack Smith who moved expeditiously after his appointment. He wanted to throw the book at the Dipshit Insurrectionist-in-Chief, but SCOTUS scuttled that plan with its immunity impunity ruling. It should, however, have heard the case earlier but did not because of a dilatory process.
I might as well rank the culpable in order of importance:
- Mitch McConnell could have led the charge to bar Trump from office. Instead, he punted to DOJ, which dropped the ball.
- The Roberts Court slow walked Team Smith’s appeal, which made it impossible for the case to be tried before the election. The immunity impunity ruling would have continued the delay if Trump had lost.
- Merrick Garland moved fiercely against the rioters, but timidly against Trump. He appointed the right Special Counsel but at least a year too late. In a word; Dilatory.
- The DOJ memo barring prosecution of a sitting president. It was written to deal with the Agnew case and has caused untold mischief since then.
- Judge Aileen Cannon who dismissed the purloined papers case before the election. Team Smith has moved to dismiss the appeal of this ruling.
- Low information voters who bought Trumpist propaganda and gave the crook another chance to disgrace his office.
Talk about a six-pack of venality, corruption, and malakatude.
MAGA Republicans have spent the last 4 years minimizing what happened on January 6, 2021. This effort to rewrite history is about to explode. My friend and Picayune columnist Stephanie Grace nailed it at Muskville:
It happened. We all saw it with our own eyes. The police officers who were brutally assaulted experienced it. Many Republican lawmakers called it what it was in the moment and soon after, on tape for posterity. Mike Pence defended the constitution while he was being hunted.”
That’s the last time I’ll ever quote something from Twitter/X. It’s become a den of iniquitous liars and conspiracy theorists. It’s only fit for the Marge Greene’s of the world.
Americans like to say that no one is above the law. It was always more aspirational than real. There are two justice systems, one for the wealthy and another one for everybody else.
Thanks to SCOTUS the system failed: Donald Trump is above the law.
Repeat after me: The son of a bitch got away with it.
The last word goes to The Rolling Stones followed by Grateful Dead:
I hear the frustration, and blaming the Attorney General is a feel-good option. But points 2 and 5 were insuperable by anyone, whether Merrick Garland or Jack McCoy or Vincent Bugliosi. The courts bailed the felon out time and again, threw sand in the works, and stopped any progress toward advancing the prosecution. And they kept it up for four long years, oblivious and impervious to public criticism (except for John Roberts or Sam Alito popping up to bitch about how the peasants just didn’t understand their genius rulings and opinions).
The system failed. That’s both inarguable and the one insight whose truth is crucial for us all to face right now.
You’re 100% right in those first three words, but then you go off the rails into late effects rather than root causes. It only serves to put off the moment of national clarity we need if we are to repair and replace this system that has failed if we stop short of root causes. Your six points of failure are way downstream of the root causes of failure. They all either can’t be corrected, or correcting them without confronting the deeper causes will do no good.
Maybe drilling down one step deeper into the failure cascade would help make my point. Let’s look at what the joint session did on J6 after the rioters cleared out and they could come back into session.
The legislators had just had their workspace overrun by a violent mob. These rioters clearly aimed to compel the joint session to make Trump president-elect for a second term, and they clearly were willing to get this done with at least the threat to murder as many of the legislators as seemed necessary. Capitol security held the rioters off long enough that the legislators were able to flee to hiding places and thus avoid becoming hostages who could be threatened directly with murder for failure to give Trump another term. By way of some sort of deal whose details we the public are not aware (unclear if Congressional leadership were parties to this agreement),Trump publicly called off his mob, and NG from DC, Maryland, and Virginia set up a defensive perimeter around the Capitol.
What didn’t happen next is the failure I am pointing out. The joint session, having just been threatened with the death of both their persons and of the republic, failed to make its first order of business the elimination of Trump. They instead proceeded with the business of making Biden president-elect, a worthy goal, but one that would have no practical effect for another two weeks. They did this despite the fact that they were now encircled by NG troops under the statutory control of the insurrectionist Commander-in-Chief who had just earlier that same day ordered a mob of amateurs to threaten them with murder. At that point, Trump had professionals in place around and in the Capitol who were legally bound to follow his orders.
The joint session could have removed Trump from office in about 5 minutes, and they needed to do this to save both themselves and the republic. They could then have removed Pence as well, had the new president not agreed to invoke the Insurrection Act and order Trump at least immediately detained. At that point the Speaker would have become Commander-in-Chief and taken control of the NG surrounding the Capitol. But instead of meeting the immediate existential threat, the joint session instead proceeded to go through the process of making Biden president-elect. They even allowed some of their number to go on making their completely groundless challenges to Biden EV tallies without facing immediate expulsion for what at that point could not be denied was participation in the insurrection.
Our legislature simply does not take itself, its duties, and its powers, at all seriously. For all the blather that people, including the folks who wrote the Federalist Papers as a sales job to get the Constitution passed, spew about three coequal branches, and checks and balances, the republic cannot survive takeover by autocratic adventurers unless the legislature has supreme power, and accepts supreme responsibility. Only the legislature, because of its numbers, can be trusted to check and balance itself.
All the joint session could get up to on J6 was going through the motions, pretending it had no duty to make the ultimate and final decisions needed to protect the republic. They could finish making Biden the president-elect because that can be imagined to be a purely ministerial task, not anything that required any exercise of discretion. But, dealing with Trump as he clearly needed to be dealt with, and dealt with before the sun set on J6? Inconceivable. That would have required acceptance of responsibility and exercise of the just powers given it in our republic to do its duty.
Every item on your list has as its root cause that we have let Congress become almost purely ministerial. A Congress that took itself seriously would not have allowed any of these failures.