There has never been a graver test of America’s rule of law than the prosecutions of Donald Trump. He “stands alone in American history for his alleged crimes,” as Jack Smith put it in a recent court filing. No president has ever schemed for months to retain power after losing an election—and over the repeated advice of his advisers and lawyers—nor taken and concealed classified documents for many months following his return to civilian life. No behavior could more urgently call for criminal sanctions, in order to protect values essential to national survival.
Notwithstanding what is at issue, the actions now under way to hold Trump to account are viewed by many with uncertainty, about both their wisdom and their chances of success. Respected people have expressed foreboding that Trump probably cannot be convicted, and that any actual prosecution may well damage the justice system, or otherwise have bad consequences. And the delay of two and a half years in bringing charges following January 6 has contributed to the sense of unease, raising further doubts about whether our system is up to the task of holding Trump to account.
A sounder perspective, urgently needed now, is to focus on how our adaptable and resilient system of justice is actually succeeding, with proceedings now moving forward at deliberate speed, and trial dates in two cases just a few months away. To get here, multiple obstacles blocking the path to legal accountability for Trump have already been overcome.
First, remember the world of January 2021. The coronavirus pandemic was reaching its peak, the program to administer the just-approved vaccines had to be organized and ramped up, and much-needed economic relief had to be—and was—enacted by bipartisan legislation within 60 days of the inauguration.
In the face of these challenges, directly following the election, President-elect Joe Biden was clear about his desire to avoid the distractions of investigating Trump. That view was in sync with a fairly broad consensus that the prosecution of a former president by a successor administration might occur in banana republics, but in America it would do more harm than good “to the nation and to the governing party in power.” Overcoming that premise would demand a fuller realization, in part through the testimonials of his own closest aides, of how thoroughly and willfully Trump had undermined the foundations of our system of government.
Another top priority at the start of the Biden administration was the need to restore public trust in a Department of Justice that Bill Barr had repeatedly misused to advance Trump’s personal and political interests. On the day of his nomination and in his first remarks to the department, Attorney General Merrick Garland placed great emphasis on the need to restore the norms of evenhanded, apolitical justice that had been “part of the DNA of every Justice Department employee since Edward Levi’s stint as the first post-Watergate Attorney General.”
That concern also counseled that initial enforcement efforts relating to the events of January 6 should focus most attention on the violent offenders, against whom cases could most readily be made, with the idea of following leads upward to ultimately reach the organizers and leaders. The earnest pursuit of that project led to more than 500 arrests within six months of January 6, and ultimately made it the largest investigation in the department’s history, with charges filed against well over 1,000 defendants in almost all 50 states.
[David Frum: Trump’s reckoning with the rule of law]
All the while, without singling out Trump by name, Garland made clear that the department would “follow the facts … and charge what the evidence supports to hold all January 6 perpetrators accountable.” In particular, he emphasized that “there cannot be different rules for the powerful and the powerless” and that the investigation would reach perpetrators “at any level … whether they were present that day” or not.
A crucial contribution in realizing Garland’s promise to reach perpetrators “at any level,” the “powerful” as well as the “powerless,” was the extraordinary work of the House Select Committee, presented to the country in televised hearings over six months starting in June 2022. Through the testimony, mostly of Trump’s own former associates, often based on their firsthand observations, he was shown to have been the primary instigator of the entire project, who regularly overrode the contrary counsel of his closest advisers.
Another key element in expanding the prosecutorial reach to leaders including Trump was the availability of the special-counsel process, which allowed appointment from outside the Justice Department of an experienced attorney “with a reputation for integrity and impartial decisionmaking” to take primary responsibility and to “follow the facts and the law wherever they may lead, without prejudice or improper influence.”
The attorney general appointed Jack Smith in November 2022, right after Trump’s announcement of his candidacy, to take responsibility for cases likely to involve the leaders of the coup attempt but not the foot soldiers, as well as all matters related to the Mar-a-Lago search warrant for classified documents. With Smith in place, and Garland left only with a never-exercised power to modify Smith’s actions or remove him for cause, the claims of a political vendetta by Biden became even more unreasonable.
Within nine months, Smith had filed the first-ever criminal cases against a former president, alleging, in the District of Columbia, the attempt to overthrow the election, and, in Florida, the criminal retention of classified documents. Two weeks after the federal indictment was filed in D.C., the district attorney of Fulton County, Georgia, filed state charges against Trump and 18 others for conduct aimed at corrupting the electoral process of that state.
The filing of charges in any criminal case is a watershed moment, ending what may be many months or years of laborious investigation with no predictable outcome. A criminal indictment states the claims of society against the defendant. At that point, the rights of both the defendant and the public to a speedy trial kick in, and the flow of events becomes more orderly and predictable.
That is not, of course, to say that the trial dates now scheduled—March 4, 2024, in D.C., and May 20, 2024, in Florida—are cast in stone, or even that we know for sure that at least one trial will proceed to a verdict well before the election. There is much work to be done, including pretrial motions on which the trial judge must rule, which will mainly address Trump’s legal theories of defense and the admissibility of evidence. The plausible legal motions for the defense are widely viewed as lacking in merit and unlikely to undermine the prosecutions, a perception confirmed by the December 1, 2023, ruling on the key absolute immunity, double jeopardy, and First Amendment motions filed by Trump in the District of Columbia federal case. At the same time, a small proportion of the possible motions are also subject to appeal before trial, and probably the greatest chance for delay will emerge in resolving that limited number of appeals.
With regard to all the events that will unfold from here on, we can take some comfort in the fact that these cases are now in the hands of trial judges who are, with the possible exception of Judge Aileen Cannon, highly competent and principled, and dedicated to seeing the cases resolved in a manner consistent with due process and the national interest. They understand what is at stake, and the need for expedition. They also know how to try a case fairly—how to select an unbiased jury, respect the rights of all parties, and proceed in accordance with the rules of evidence. In handling the appeals of any pretrial motions, the appellate courts can also be counted on to do their best to follow the law and give due consideration to the urgent national interest in expediting their resolution.
As for the trials of the cases, no one can ask more than that the evidence be fairly presented to a properly instructed, unbiased jury, and there is good reason to believe that can be achieved. Because no fair trial in our system ever has a totally predictable outcome, this is a measure of uncertainty we must have the courage to accept. But the ample public record, including especially the many statements of Trump’s own associates about his conduct, gives grounds for expectations about what outcomes are likely to result from a fair airing of the facts.
In pursuing this path of justice for the former president, our rule of law may also serve the nation in another quite important way. Trump’s primary public appeal has always been closely tied to his defiance of the norms observed by normal people, and his claimed ability to make his own rules and define his own truth. But Trump’s engagement now in a prolonged and personal interaction with our judicial process does not sit easily with these claims to be above all authority.
[David A. Graham: The cases against Trump – a guide]
These three pending criminal cases—and the civil cases involving E. Jean Carroll and the New York attorney general’s allegations of systematic business fraud—all show him, day by day as events unfold, to be subject like everyone else to society’s rules of conduct. Not only the convictions that may well result, but the judicial proceedings themselves are graphic demonstrations for all to see that our democratic rule of law, and not Donald Trump, is indeed supreme.
In short, compared with the mire of uncertainty in which the nation has wallowed for the past several years, with no clear plan or path to deal with the most serious threat to our governmental system since the Civil War, we are now in a new and much better moment. Indeed, while the final chapters have yet to be written, it is not too soon for patriotic Americans to publicly take pride in what is now clear—that our rule of law is durable and works, even under the most challenging circumstances. A quiet celebration of that fact might begin with the suggestion made by the 28-year-old Abraham Lincoln when, in 1838, the country faced a different threat of mob rule: that by our renewed respect for the rule of law, we make it “the political religion of the Nation.”
