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TRUMP GOT AWAY WITH IT — BECAUSE OF THE BIDEN ADMINISTRATION’S
MASSIVE MISSTEPS  
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Ankush Khardori
November 7, 2024
Politico
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_ Blame Merrick Garland, Mitch McConnell and the Supreme Court. _

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We have just witnessed the greatest failure of federal law enforcement
in American history.

The reasons for Donald Trump’s reelection are numerous and will be
hotly debated in the weeks ahead. But the story of his comeback cannot
be told without seriously grappling with how he managed to outrun
four criminal cases
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including — most notably — the Justice Department’s prosecution
over Trump’s alleged effort to overturn the 2020 election.

At the root of it all are the considerable and truly historic 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 in recent years that effectively
bailed Trump out when the risks for him were greatest.

The two federal criminal cases against him are now dead as a practical
matter. Already there is reporting
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special counsel Jack Smith will leave his post and dismiss the pending
cases, which is not that surprising considering that Trump pledged to
fire him
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back in office anyway. The Georgia case, an overhyped
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vehicle
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post-2020 legal accountability, is going to remain on ice and perhaps
get thrown out entirely in the coming years, at least as to Trump (if
not his co-defendants). In Manhattan, where Trump was supposed to
be sentenced in a matter of weeks
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his conviction in the Stormy Daniels hush money case earlier this
year, Trump is likely to ask the court to cancel the sentencing date;
regardless of the mechanics, there is no reasonable scenario in which
Trump serves some period of incarceration
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also serving in the White House.

All of this will happen despite the majority of the public’s stated
interest
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concluding the criminal cases — the federal election subversion case
in particular — as well as polling that suggested that Trump’s
conviction early this year hurt his standing
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the electorate and with independents in particular.

If that seems incongruous, it is not. The most obvious explanation for
Trump’s win despite his considerable 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. Fair or not, this was absolutely their
right as voters.

But if the system had worked the way it should have, voters would
never have faced such a choice. If Trump had actually faced
accountability for his alleged crimes, he may not have even appeared
on the ballot.

IT IS NOW CLEARER THAN EVER that Garland was a highly questionable
choice to serve as attorney general
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the start. From the outset of the Biden presidency, it was readily
apparent that Garland had little desire
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investigate and potentially prosecute Trump.

The most comprehensive accounts on the matter, from investigative
reporting at _The Washington Post_
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New York Times_
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strongly indicate that the Jan. 6 committee’s investigation and
public hearings in 2022 effectively forced Garland to investigate
Trump and eventually to appoint Smith in November of that year —
nearly two years after Trump incited the riot at the Capitol.

There are many people — including many Democratic legal pundits —
who have continued to defend this delay and may continue to do so, so
let me be very clear: Those people are wrong.

It was clear after Trump’s loss in 2020
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even before Jan. 6 — that his conduct warranted serious legal
scrutiny by the Justice Department, particularly in the area of
potential financial crimes. But that probe, which could and should
have been pursued by Biden’s U.S. Attorney
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attorney general
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Manhattan, somehow never materialized
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It was also clear — on Jan. 6 itself
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that Trump may have committed criminal misconduct after his loss in
2020 that required immediate and serious attention from the Justice
Department.

The formation of the Jan. 6 committee in early 2021 did nothing to
change the calculus. There too, it was clear from the start
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there would still need to be a criminal investigation to deliver any
meaningful legal accountability for Trump.

In fact, the warning signs for where this could all end up — where
the country finds itself now — were clear by late 2021, less than a
year into Biden’s term. The public reporting at the time indicated
(correctly, we now know) that there was no real Justice Department
investigation into Trump and his inner circle at that point, even
though the outlines of a criminal case against Trump — including
some of the charges themselves that were eventually brought nearly two
years later — were already apparent
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As a result, the Biden administration and the Garland Justice
Department were running an extremely obvious risk — namely, that
Trump would run for reelection and win, and that any meaningful
criminal accountability for his misconduct after 2020 would literally
become impossible. That, of course, has now happened. It was all
eminently predictable
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Garland’s defenders over the years — including many Democratic
lawyers who regularly appear on cable news — claimed that Garland
and the department were simply following a standard, “bottom-up”
investigative effort. Prosecutors would start with the rioters, on
this theory, and then eventually get to Trump.

This never made any sense
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It did not reflect some unwritten playbook for criminal
investigations. In fact, in criminal cases involving large and
potentially overlapping groups of participants — as well as serious
time sensitivity — good prosecutors try to get to the top
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quickly as possible.

The Justice Department can — and should — have quickly pursued the
rioters and Trump in parallel. The fact that many legal
pundits actually defended this gross dereliction of duty
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actually argued that this was the appropriate course
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continues to amaze me.

As for Garland, his legacy is now out of his control, and the early
returns are not looking good.

Garland is a serious, well-intentioned and complex figure
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But given all this, he may go down as one of the worst and most
broadly unpopular 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. I sincerely hope he provides a first-hand accounting of
what happened after he too leaves office next year.

NONE OF THIS, HOWEVER, excuses the Republican political and legal
class for their role in all this as well. In fact, Trump could not
have pulled it off without a great deal of help from them too.

Start with Mitch McConnell and Senate Republicans in 2021. They could
— and should — have voted to convict Trump
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his second impeachment, which would have prevented him from running
again for the presidency. Instead, McConnell and almost every other
GOP senator let him off the hook.

Trump then proceeded to execute perhaps the most remarkable political
rehabilitation in American history, but which should not have been
nearly such a surprise. He never seemed to lose his grip on the party
and in fact strengthened it over the course of 2021, as the likes of
Kevin McCarthy and others quickly rallied around him
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The Republican presidential primaries also proved, in the end, to be a
boon for Trump in his legal fight. By the time they concluded, Trump
had been indicted by the Justice Department and local prosecutors in
Manhattan and Fulton County. Under the traditional rules of politics,
this should have provided incredible fodder for his adversaries and
essentially killed his campaign.

Instead, his most prominent primary opponents — _his
opponents _— came to his defense. As the prosecution in Manhattan
came into focus, for instance, Florida Gov. Ron DeSantis belittled the
effort as “some manufactured circus by some Soros-DA.”
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Haley
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Ramaswamy
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said that they would pardon Trump if elected.

It was no surprise, then, that Republican primary voters rallied
around Trump. Perhaps it was inevitable, but it was certainly made
easier by the fact that Trump’s supposed adversaries were all
endorsing his legal defense as well as his false claims about the
prosecutions themselves.

Last but most certainly not least: The Republican appointees on the
Supreme Court bailed Trump out this year — in the heart of the
general election campaign and when it mattered most.

A very large swathe of the public — somewhere around 60 percent
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to our polling and others
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wanted Trump to stand trial this year in the 2020 election subversion
case. Before the Supreme Court weighed in, an even larger portion of
Americans — somewhere around 70 percent
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rejected the idea that presidents should be immune from prosecution
for alleged crimes they committed while in office.

The six Republican appointees — three of whom, of course, were
appointed by Trump himself — sided with Trump on both counts.

They first slow-walked Trump’s appeal
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immunity grounds this year and then created a new doctrine of criminal
immunity for Trump that had no real basis in the law
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effectively foreclosing the possibility of a trial before Election
Day. It was a gross distortion of the law in apparent service
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Republican appointees’
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political objectives
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This was all quite bad all around, but make no mistake: Trump’s
reelection caps off the most remarkable reversal of legal fortunes in
the history of American law. And besides Trump himself, many political
figures in both parties share the blame.

_Ankush Khardori is a senior writer for POLITICO Magazine and a former
federal prosecutor at the Department of Justice, where he specialized
in financial fraud and white-collar crime. He has also worked in the
private sector on complex commercial litigation and white-collar
corporate defense. His column, Rules of Law, offers an unvarnished
look at national legal affairs and the political dimensions of the law
at a moment when the two are inextricably linked._

_POLITICO_ [[link removed]]_ is the global
authority on the intersection of politics, policy, and power. It is
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* Donald Trump
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* Legal Strategy
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* Merrick Garland
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* SCOTUS
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* Mitch McConnell
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