THE GREATEST FAILURE OF FEDERAL LAW ENFORCEMENT IN AMERICAN HISTORY

We have just witnessed the greatest failure of federal law enforcement in American history. There is no easy way of getting around that fact, and well-known lawyers on our side who said that we had to defer to Merrick Garland and his prosecutorial priorities were wrong enough on the issue to call into consideration whether I would hire them to represent my interests if I needed such. That goes for several TV lawyers on MSNBC, and some others at other places. We who said the Garland policies were not just wrong-headed by actually insane were right. And it didn’t take going to law school to be able to see that truth.

Donald Trump, a convicted felon who stioll awaits sentencing in his hush money case in New York, and until Wednesday was still working to stave off prosecution in other state and federal cases, has been reelected to the White House. And as predicted, he will get away scot-free.

Never before has a convicted criminal defendant been elected to the presidency, just as an ex-president had never been criminally charged - until last year.

Judge Juan Merchan in New York is set to sentence Trump on November 26 on 34 counts of falsifying business records to cover up a hush money payment made during the 2016 campaign to adult-film star Stormy Daniels, after holding off on handing down the punishment ahead of Election Day to avoid any appearance of affecting the outcome of the presidential race. It is unlikely that sentencing will happen, given the unlikely event of incarcerating a president-elect. The decision not to sentence hm will likely be delivered next Tuesday at the scheduled hearing for the judge to announce whether he will wipe away the conviction because of the Supreme Court’s decision this summer granting a president immunity for criminal acts. At the moment, the “best possible outcome,” as advocated by Alvin Bragg’s office, is that the guilty verdict would remain with a decision not to sentence. I would personally give that idea the survival odds of a snowball in hell.

The immediate fate of Trump’s criminal case in Georgia largely hinges on whether Fulton County District Attorney Fani Willis, a Democrat, is disqualified from prosecuting the matter after her prior romantic relationship with a fellow prosecutor. But even if she is allowed to continue prosecuting Trump, the case would almost certainly imperiled now that he has been elected. The appeals court decision whether to disqualify Willis is not expected until 2025. If Willis is removed, it’s no other prosecutor will want to take up the case and it will effectively go away. Sources familiar with the case said it is unlikely that a state-level judge would allow proceedings to continue when Trump is president and, in that scenario, Trump’s attorneys would certainly move to have the case dismissed.

The former president is also defending himself in a litany of civil lawsuits, including ones concerning his role in the January 6, 2021, attack on the US Capitol, two E. Jean Carroll defamation cases, and a civil fraud case brought by the New York attorney general where Trump was ordered to pay nearly $454 million in damages.

In September, state and federal appeals courts in New York heard arguments for two of Trump’s civil appeals.

A federal appeals court heard Trump’s appeal to dismiss the first Carroll verdict in September. The court has yet to issue a decision.

Today,. E. Jean Carroll announced to her Substack readers that she and her attorney will be stepping back from “active efforts” in her cases.

There is also the decision of the state appeals court regarding Trump’s efforts to dismiss the $454 million civil fraud judgement against him, in which a judge found he, his adult sons and his company fraudulently inflated the value of Trump’s assets to obtain better loan and insurance rates.

Trump is also still facing civil lawsuits brought by Democratic lawmakers and others over his role in the January 6 Capitol attack.

It’s possible that all these cases continue to play out even as Trump serves his second term in the White House. In a 1997 Supreme Court ruling stemming from a civil lawsuit then-President Bill Clinton was involved in, the justices unanimously decided that sitting presidents could not invoke presidential immunity to avoid civil litigation while in office.

The story of Trump’s comeback cannot be told without seriously grappling with the question of how he managed to outrun four criminal cases, including the Justice Department’s prosecution over his effort to overturn the 2020 election.

The responsibility for the failure is clear.

At the root are the truly historic political and legal missteps by the Biden administration and Attorney General Merrick Garland, as well as a series of decisions by Republicans throughout the political and legal systems that bailed Trump out when the risks for him were greatest.

The two federal criminal cases against him are now dead. Special counsel Jack Smith announced Friday that he will leave his post and dismiss the pending cases. Judge Chutkan has stopped further action on the Jan. 6 case, and the Justice Department will drop the appeal of the dismissal of the Mar A Lago document theft case by Judge Cannon. Under federal law, Smith must provide a confidential report on his office’s work to the attorney general before he leaves the post. He has said that report will be delivered on December 2. Garland has said he will make public any report he receives, so at least there will be facts in the record to inform future historians that Donald Trump was in fact a seditionist, a traitor, and a thief.

All of this happened despite the majority of the public having several times stated an interest in concluding the criminal cases, as well as polling that Trump’s conviction on 34 felonies hurt his standing across the electorate and with independents in particular. The most obvious explanation for Trump winning in spite of his legal problems is that a critical mass of voters were willing to set aside their concerns about Trump’s alleged misconduct because of their dissatisfaction with the Biden-Harris administration. And the price of eggs and the cost of gasoline. And he fact that H.L. Mencken was right 100 years ago when he observed that no one would ever go broke underestimating the intelligence of the average American.

If the system had worked the way it should have, voters would never have faced such a situation.

It is now clear that Merrick Garland was the exact wrong person to serve as attorney general from the start. From the outset, it was apparent Garland had no desire to investigate and potentially prosecute Trump. And it is also clear that the man who appointed him to that position was welded politically to his lifelong belief in “go along to get along” as only a stubborn Irishman can be, to his own unmaking.

The warning signs for where this could all end up were clear by late 2021, less than a year into Biden’s term. Public reporting at the time indicated (correctly, we now know) there was no real Justice Department investigation into Trump and his inner circle, even though the outlines of a criminal case against Trump were already apparent.

It was only the public outrage from the Jan. 6 committee’s investigation and public hearings in 2022 that changed the politics and forced Garland to investigate Trump and finally appoint Smith special prosecutor in November that year - two years after Trump incited the Jan. 6 insurrection at the Capitol.

It was clear after Trump’s 2020 loss - even before he incited the insurrection - that his conduct warranted serious legal scrutiny by the Justice Department, particularly in the area of potential financial crimes regarding his personal enrichment during his term in office. But that probe, which could and should have been pursued the day after Biden’s inauguration, somehow never materialized.

It was also clear — on Jan. 6 itself — that Trump was guilty of having committed criminal misconduct after his loss in 2020 that required immediate and serious attention from the Justice Department. Mitch McConnel. Lindsay Graham and Kevin McCarthy - among others - said so publicly the day of the attempted coup.

It was clear from the start of the Jan. 6 committtee’s investigation that there would still need to be a criminal investigation to deliver any meaningful legal accountability for Trump.

The Biden administration and Garland Justice Department were willing to run the risk that Trump would run for reelection and win, making any meaningful criminal accountability for his misconduct impossible. It was all eminently predictable. And now it has happened.

Garland’s defenders claimed he and the department were simply following a standard, “bottom-up” investigative effort. Prosecutors would start with the rioters, and eventually get to Trump.

This never made any sense.

There is no unwritten playbook for criminal investigations. In criminal cases involving large and potentially overlapping groups of participants - as well as serious time sensitivity - serious prosecutors try to get to the top as quickly as possible.

The Justice Department could have quickly pursued the seditionists and Trump in parallel.

As for Garland, his legacy is now out of his control. He will likely go down in he records as one of the worst attorney generals in American history - hated by the anti-Trump part of the country for failing to bring Trump to justice, and hated by the pro-Trump part of the country for pursuing Trump at all.

Trump could not have pulled this off without a great deal of help from the Republican political and legal class.

Start with Mitch McConnell and Senate Republicans in 2021. They could and should have voted to convict Trump after his second impeachment, which would have prevented him from running again for the presidency. McConnel could easily have gotten the votes from his caucus to confirm a conviction that would have barred Trump from politics for the rest of his life. Instead, McConnell and almost every other GOP senator let him off.

Trump then proceeded to execute perhaps the most remarkable political rehabilitation in American history, but which should not have been nearly such a surprise. In the Republican presidential primaries, Gov. Ron DeSantis belittled the effort as “some manufactured circus by some Soros-DA.” Nikki Haley and Vivek Ramaswamy both said that they would pardon Trump if elected.

Last but most certainly not least: The Republican appointees on the Supreme Court bailed Trump out in the heart of the general election campaign and when it mattered most. Before the Supreme Court weighed in, 70 percent of the public rejected the idea that presidents should be immune from prosecution for alleged crimes they committed while in office.

The six Republican traitor appointees first slow-walked Trump’s appeal on immunity grounds this year and then created a new doctrine of criminal immunity for Trump that had no real basis in the law that insured no case that took this ruling into effect could be brought in time before the election. It was a gross distortion of the law in service of their partisan political objectives. This is the worst court since the Taney Court of the 1850s.

Make no mistake: Trump’s reelection caps off the most remarkable reversal of legal fortunes in the history of American law.

While Trump promises to pardon the convicted Jan. 6 rioters, another group from that fateful day may end up paying no price: the Jan. 6 rioters who have yet to be apprehended and charged. Even if the Biden DOJ did charge them, the Trump DOJ would not follow up.

This entire process demonstrates the complete inability of the American political establishment to deal effectively with the greatest threat it has faced in the country’s history. It is not just a calamity. It’s worse.

It has been a mistake, on all points, at all levels, in all ways. A mistake for which there are no excuses. The entire leadership of the United States in both political parties failed at its most important, most crucial, moment.

That Donald Trump will take the Oath of Office as President - laughing out loud at the promise “to protect and defend the Constitution of the United States against all enemies, foreign and domestic” - is proof that the American Republic is in far worse shape than anyone cares to admit.

It took 267 years from the final defeat of the Carthaginians that established the Roman Republic as the premiere power in the ancient world to get to the rise of Julius Caesar.

I was born on the high tide of the American Republic, 1944, the year America liberated the planet; it’s taken less than my lifetime to get to the rise of Donald Trump.

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