Evan Vucci/AP Photo
Had Attorney General Merrick Garland named a special counsel on March 10, 2021, when he was confirmed, or simply launched the prosecution himself, the trial might well have been over by now.
Finally. Disgraced former President Donald Trump has been indicted for the worst of his many alleged crimes: attempting to overturn the 2020 election, abolish constitutional government, and install himself as unelected dictator. Per an indictment handed down by a grand jury on Tuesday evening, Trump faces four felony counts: conspiracy to defraud the United States, conspiracy to obstruct the vote certification of the 2020 election, obstruction of that vote certification, and conspiracy to violate Americans’ civil rights. It was all part of an alleged scheme to replace the official slates of Electoral College voters in key swing states with his own slates of fake electors. Then, during the electoral certification process, Vice President Pence was to declare the official result invalid, count the fake electors, and declare Trump president.
Trump’s previous two indictments—for business fraud and mishandling classified documents—also involve serious crimes. But this one is more important by far. As Josh Marshall writes at Talking Points Memo, “No crime, no violation of the law can be more consequential or grave than one that seeks to overthrow the basis of the law itself, which is to say, to overthrow the federal constitution and the state itself.” (Another state-level indictment in Georgia is expected to be released soon.)
And it’s all no thanks to Attorney General Merrick Garland. For nearly two years, he refused to indict Trump on these severe alleged crimes that were carried out in plain sight. It was only after the House’s January 6th Committee investigating the attempted putsch uncovered damning new evidence that Garland was shamed into action, and he appointed Jack Smith as a special counsel.
As my colleague David Dayen observes, little of the information in the indictment is new. Indeed, during the period in which Trump was trying to overturn the results between the 2020 election and Joe Biden’s inauguration, there was already more than enough information publicly reported for a prosecution. There was Trump’s constant repetition of inflammatory lies about the election that his own campaign and governmental officials from the Justice Department and Department of Homeland Security, including the attorney general, told him were false. There was the time Trump personally called a Michigan election official to pressure her to reverse the state results.
Probably most damning was the time Trump called up Georgia Secretary of State Brad Raffensperger and tried to bully him into changing the vote total, saying, “I just want to find 11,780 votes.” CNN published a recording and transcript of that conversation on January 3, 2021—or 942 days ago.
Most everything else in the indictment was laid out by the January 6th Committee, including most of the eventual charges. “The indictment continuously repeats evidence revealed during the course of the congressional inquiry,” writes Luke Broadwater at The New York Times. Ultimately, “Mr. Smith brought charges that had been recommended by the committee.”
The American legal system works at a glacial pace at the best of times, and there will be innumerable chances for Trump and his lawyers to gum up the works.
To be fair, Smith did uncover some damning new evidence, such as the flippant remark from one of Trump’s co-conspirators (almost certainly former Justice Department official Jeffrey Clark) that should riots break out due to Trump stealing the election, they could simply invoke the Insurrection Act and crush them with military force. We also learned that when Pence refused to go along with Trump’s scheme, Trump allegedly said, “You’re too honest,” indicating consciousness of guilt.
Again, this isn’t to demean Smith for copying anyone’s homework. His job was to uncover evidence and bring charges as necessary, and he did exactly that. It took him about eight and a half months since being appointed in November last year—perhaps a bit slow by ordinary criminal procedure standards, but one would want to be very careful with such a high-profile defendant and so important a case. Smith also seems to be intending to get the trial moving as quickly as possible by charging Trump alone instead of together with his co-conspirators.
But it comes late enough that Trump’s trial likely will not be finished by the time of Election Day 2024. The American legal system works at a glacial pace at the best of times, and there will be innumerable chances for Trump and his lawyers to gum up the works. I’d wager that if Trump is nominated, as seems nearly certain, once the presidential campaign is in full swing the trial will be put on pause. And if Trump wins, he will find a way to evade punishment.
Had Garland named Smith on March 10, 2021, when he was confirmed as attorney general, or simply launched the prosecution himself, the trial might well have been over by now.
As Dayen notes, there has long been a culture of elite impunity in this country, both in and out of government. Washington elites who subscribe or acquiesce to this culture often evince what I call “chauvinist cowardice,” which is the neurotic belief that American institutions are the best in the world combined with a deep reluctance to make them actually work. As Alex Pareene writes, this type of person believes it “is important that people retain faith in our institutions, which does not mean that our institutions should work to earn people’s faith, but instead that people shouldn’t hear about it when they don’t.”
So when the president and most of his top advisers set up a torture program, we must “look forward as opposed to looking backwards,” to quote then President-elect Barack Obama. And when another president tries to overthrow the government, the succeeding top national law enforcement officer dithers and procrastinates for nearly two years, until shamed into action by a legislative committee.
A country whose political class was not so blinkered and self-satisfied would know what to do with Trump: remove him from the political field. Such a man cannot be allowed anywhere near presidential power. It’s highly welcome that Jack Smith, along with other law enforcement officials, are now attempting to do just that. Let’s just hope it’s not too late.
