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, 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 suggesting that 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 once back in office anyway. The Georgia case, an overhyped and misguided vehicle for 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 after 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 while also serving in the White House.
All of this will happen despite the majority of the public’s stated interest in 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 across 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 from the start. From the outset of the Biden presidency, it was readily apparent that Garland had little desire to investigate and potentially prosecute Trump.
The most comprehensive accounts on the matter, from investigative reporting at The Washington Post and The New York Times, 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 — 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 and aspiring attorney general in Manhattan, somehow never materialized.
It was also clear — on Jan. 6 itself — 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 that 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.
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.
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.
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 as 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 — and actually argued that this was the appropriate course — 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. 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 after 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.
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.” Nikki Haley and Vivek Ramaswamy both 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 according to our polling and others — 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 — 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 on immunity grounds this year and then created a new doctrine of criminal immunity for Trump that had no real basis in the law — effectively foreclosing the possibility of a trial before Election Day. It was a gross distortion of the law in apparent service of the Republican appointees’ partisan political objectives.
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.
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