And So It Ends

Susan Estrich on Nov 28, 2024

On Monday, Special Counsel Jack Smith filed motions to dismiss the two pending criminal cases against Donald Trump, the D.C. case centered on his actions to subvert the result of the 2020 election and the Florida case about classified documents.

The legal system failed.

Just how it failed is a matter of some debate. "If Donald J. Trump had lost an election, he may very well have spent the rest of his life in prison," Vice President-elect J.D. Vance said on social media, "It's time to ensure what happened to President Trump never happens in this country again."

Is that why Trump has promised to use the Justice Department to seek retribution against his political enemies? I thought that was precisely what he intended.

For his part, Trump's spokesman called the dismissal of the D.C. indictment, which also came on Monday, "a major victory" in ending "the political weaponization of our justice system."

If this was political weaponization, it was a very poor job of it. Donald Trump, who used to boast that his supporters would let him get away with murder, did. They rescued him from what turned out to be the toothless claws of the criminal justice system.

How did he do it? He did not argue the facts. He did not argue the law. He delayed. Masterfully. He played victim. He made motions. He took appeals. With a powerful assist from Judge Aileen Cannon in Florida (who surely must have a future in a Trump administration) and the United States Supreme Court, he managed to avoid the trials that could have done him in, especially the one in D.C., by sheer dint of delay. While Cannon took a lot of bad press for decisions that can only be politely explained as the works of a loyalist, the Supreme Court, in addition to issuing a terrible opinion for a democracy, did worse by first refusing to hear the case when Jack Smith asked them to take it last December, only to send them back to the appellate court, which got it all right and therefore wrong, which turned out to be a colossal waste of time, depriving Jack Smith any stab at proving a pared down case.

Until the election decided it. Just like that.

We're not used to having criminal cases end with elections. The defendant triumphs, if he does, by convincing a jury of his peers not to convict, not by delaying cases from ever going to trial and then winning an election for president.

Would it have made a difference? Would Trump have lost the election if he'd been forced to stand trial in D.C.? Probably not. The election decided this much. The public didn't care. That's a tough one to swallow. They didn't care that he was convicted of 34 felony counts. They didn't care that he incited a riot and promised pardons for the rioters. They didn't care that he mishandled classified documents. None of that, in the minds of those who elected him, was enough to disqualify him from the most powerful position in the world.

Of course Trump's position has been, from the get go, that he should have been immune from prosecution, that he was above the law, that the Justice Department brought charges against him because of politics, not principle. Was he held to a higher standard by the Special Counsel? Of course. So was Hunter Biden. Shouldn't presidents be held to a higher standard? That's what special counsels do. It should not be cause for seeking vengeance or retribution. That would be the very politicization of the Justice Department that Trump has so vigorously denounced. But consistency has never been Trump's strong point.

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