Trump Evaded Jack Smith and the Rule of Law

Opinion|Trump Evaded Jack Smith and the Rule of Law

The real verdict on Donald Trump will be issued by the American people.

That was the familiar rejoinder to those frustrated by the inability of the legal system to hold Trump accountable for the crimes he was charged with, against the American government and against its people. Instead of facing a jury of 12, Trump would face a jury of 160 million, give or take. It was the most democratic manner in which to handle this unique and imminent threat to democracy.

Well, the jury has spoken. Trump will spend the next four years (at least) as the most powerful man in the world and without fear of a federal indictment while in office.

This was clear by around 11 p.m. on the night of Nov. 5, of course, but it began to take formal legal shape on Monday, when the special counsel Jack Smith moved to dismiss both of his cases against Trump, one involving his attempt to overthrow the 2020 election and the other involving his hoarding of and refusal to return highly classified documents to the government after leaving office.

“The department and the country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected president,” Smith wrote in his motion.

He made sure to add that this has nothing to do with the gravity of the charges or the merits of the government’s Jan. 6 case, which Smith has already described in great detail in his indictment, as did the House Jan. 6 committee — and that was generally regarded as the less solid of the two cases. Rather, under Justice Department rules, sitting presidents cannot be prosecuted. That’s the beginning and the end of it. Trump broke the rules that others play by, but as has been the case so often in his career, he will pay no price for doing so.

So what is left to say? It’s hard enough to accept a profound collapse of the rule of law and the work of multiple grand juries; it’s even harder to accept that this outcome was created by a plurality (but not a majority!) of American voters — more precisely, about 230,000 across three key swing states.

The people, given as much information as possible about Trump’s multifarious plots and crimes, chose nevertheless to bestow on him the ultimate power once again; it’s a democratic outcome, but not one supported by the Constitution’s insistence on the primacy of law.

The entire point of democratic self-government, after all, is the absence of kings; its leaders are bound by the same laws, and subject to the same punishment for violating them, as everyone else. Once that goes out the window, it requires years of painstaking work to restore.