We’re running out of time to prove to Americans that our legal system can deliver impartial justice.
There’s no more definitive indictment of the U.S. legal and political systems than Donald Trump’s entry into the 2024 presidential race a week after his Big Lie candidates crushed Republican hopes and dreams nationwide.
You’d think by now there would be another way to use the words Trump and indictment in the same sentence. But no.
All through his seven-plus years on the national political stage, Trump has demonstrated that, despite our fondest fantasies about American exceptionalism and peaceful transfers of power, some people are above the law, the Constitution and the oaths they take to hold high office. He escaped Senate convictions on two House impeachments that would have barred him from running again, and now is trying to run out the clock on so many lawsuits and investigations that someone should invent an app to track them.
The delay tactics keep coming from Trump, his allies and the lawyers risking their licenses and reputations for him – frivolous lawsuits; a special master request; recurring and dubious executive privilege claims; fighting subpoenas to testify before grand juries and congressional committees, including the House panel investigating a Trump mob’s deadly attack on the Capitol on Jan. 6, 2021.
The “clock of justice,” as Harvard constitutional law professor emeritus Laurence Tribe and former federal prosecutor Dennis Aftergut call it, is ticking. We’re running out of time to prove to Americans that our legal system can deliver impartial justice.
Impatient for convictions
“The public is deeply cynical, believing that we have become a nation in which some are too big to jail,” former AFL-CIO political director Michael Podhorzer said in a post-election email about the impact of this year’s Jan. 6 committee hearings and President Joe Biden’s message that democracy was on the ballot.
In Research Collaborative focus groups during the hearings, he said, “we heard a growing impatience” for accountability and convictions.
To date, the Justice Department has arrested nearly 900 people in connection with the attempted Jan. 6 insurrection. About half have pleaded guilty and 23 have been convicted at trial.
Government attorneys are gradually moving up the ladder to those who planned, enabled and fueled the larger scheme to keep Trump in office despite his loss, including, potentially, Trump himself. But that’s the most complicated of the former president’s many legal entanglements. How and when it will end is uncertain.
Trump could face his first major reckoning in Atlanta, where Fulton County District Attorney Fani Willis is investigating the well-documented efforts he and his allies made to reverse Biden’s 2020 Georgia win. She’s looking into election fraud, conspiracy, racketeering and other potential offenses, and has said that she’s aiming for a decision on charges by the end of the year.
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Norman Eisen, a former White House ethics counsel and House impeachment special counsel, is lead author of a new Brookings Institution report on the Willis investigation. He said the facts of the case and the laws of Georgia suggest a “substantial likelihood” that Trump and others will be indicted.
“This is the greatest legal peril that Donald Trump has faced in his … more than half-century of skirting on the edge of the law. We believe he will be charged,” Eisen said at a Defend Democracy Project webinar Monday.
Hours before Trump announced his third candidacy, Georgia Gov. Brian Kemp testified before the Willis special grand jury, and a judge ruled that former Trump national security adviser Michael Flynn must testify next week.
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Mar-a-Lago records case is an easy call
The most straightforward federal case against Trump arises from the presidential documents, some of them even more sensitive than top secret, that he moved to his Mar-a-Lago golf resort residence in Florida. The National Archives and the FBI have been trying to get them back since Trump left the White House, and finally staged a raid in August to retrieve them. The Justice Department is looking at whether Trump violated the Presidential Records and Espionage acts.
New York University law professor Ryan Goodman, founding co-editor-in-chief of the national security website Just Security, said it’s clear from a review of all past Espionage Act prosecutions that Trump’s conduct is “even more egregious” than in those cases. “Aggravating factors” such as how long it took to recover the documents, the volume (over 300), their nature (some highly sensitive) and the repeated warnings Trump received will likely force the department’s hand, he said at the Defend Democracy event.
Aftergut, the former federal prosecutor, was at law school with Attorney General Merrick Garland. He said he has “a heavy dose of faith” that his former Harvard classmate will get this done.
“Garland is not going to take politics into account at this point. He doesn’t think that’s his job. And it’s not,” he told me. “He has said that ‘we follow the facts and the law.’ You cannot stand for the rule of law and not indict Trump for Mar-a-Lago.”
On Friday, Garland named a special counsel to handle the Jan. 6 and Mar-a-Lago criminal investigations. He says it won’t slow them down, but color me skeptical.
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Outrageous acts keep coming to light
The Jan. 6, Mar-a-Lago and Georgia investigations are huge but hardly the whole picture. Plausibly impeachable offenses from Trump’s tenure continue to emerge.
Former White House chief of staff John Kelly said in a New York Times story published Sunday that Trump tried numerous times to sic the Internal Revenue Service on people he viewed as enemies. Top targets: James Comey, the FBI director fired by Trump, and Comey’s deputy, Andrew McCabe. Kelly told Trump the idea had serious moral and legal problems, according to The Times. Weaponizing the IRS against perceived enemies was in the abuse of power impeachment article against President Richard Nixon, so yes, that would have been bad.
And yet, after Kelly left, the IRS subjected Comey and McCabe to highly intrusive tax audits. What are the odds?
Republicans won by losing the right races. And America is better because of it.
On Monday, the Supreme Court allowed the House Jan. 6 committee to access Arizona GOP chair Kelli Ward’s phone records as part of a probe of false elector schemes. The House Oversight and Reform Committee released documents showing that six foreign governments – China, Saudi Arabia and Turkey among them – spent $750,000 at Trump’s Washington hotel during his first two years in office as they tried to influence U.S. policy.
And so it goes as outrages from Trump’s past collide with his increasingly dim political future. If only the law treated him a fraction as ruthlessly as he vowed in his announcement to treat others.
Republicans, of course, have only themselves to blame for being mired in the sludge and sleaze of Trump and his hand-picked slate of election-denying midterm losers. Most of them gave him a pass even after Trump unleashed a violent mob to stop the electoral vote count that would finalize Biden’s win, and they had to flee for their lives.
At the time, in February 2021, a furious Senate GOP leader Mitch McConnell said he believed it would be unconstitutional to convict Trump because he was already out of office. But he added: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”
The appropriate response back then, given Trump’s long history of evading consequences, would have been “good luck with that.” So far, that’s still true. Tragically.
Jill Lawrence is a columnist for USA TODAY and author of “The Art of the Political Deal: How Congress Beat the Odds and Broke Through Gridlock.” Follow her on Twitter: @JillDLawrence
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