The attempt to hold Donald Trump accountable for seeking to illegally overturn the results of the 2020 election ended shortly after midnight on Tuesday with a whimper, as the United States Department of Justice posted online special counsel Jack Smith’s report just days before Trump reassumes the office of the presidency following his legitimate victory in the 2024 elections. Mitch McConnell, Merrick Garland, and the conservative majority on the United States Supreme Court share responsibility for this remarkable failure of democracy and governance, a failure that could reverberate throughout Trump’s presidency and beyond.
The report succinctly and clearly lays out the attempt to subvert the election through false claims of fraud, attempts to manipulate the rules for choosing presidential electors, pressure on election and elected officials, and ultimately an attempt at political violence. As the report notes, there is no precedent in American history for this attempt to interfere with the peaceful transition of power and turn oneself from an election loser into an election winner. The dangers going forward are deadly serious, as I wrote in Richard L. Hasen, Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States, 135 Harvard Law Review Forum 265 (2022).
It is also no mystery as to who is to blame for this state of affairs. As I wrote in Slate back in October:
There’s a ton of blame to go around for this situation, beginning with then–Senate Majority Leader Mitch McConnell’s refusal to support Donald Trump’s conviction in the Senate after the House impeached him for these activities. Although 57 senators, including seven Republicans, voted for conviction, McConnell did not bring more Republicans along. Had he done so, the Senate could have disqualified Trump from running for office again.
Then there is Joe Biden’s Attorney General Merrick Garland, who dragged his feet for well over a year before taking decisive action against the biggest threat to American democracy since the Civil War of the 1860s. His timidity is inexplicable and disappointing.
But worst of all is the United States Supreme Court. Smith’s Wednesday filing was not a trial brief laying out the case. It is instead a document meant to determine which of Trump’s acts in attempting to subvert the 2020 election were “official acts” that are immune from prosecution and which are unofficial acts, or official acts that may be subject to prosecution (under a set of rules very protective of the former president). Nowhere are the stakes clearer and the difficulty of the task more explicit than when Smith attempts to rebut the presumptive immunity the court offered in regard to Trump’s conversations with Pence seeking to pressure him not to certify the electoral vote….
The fact that no jury may pass on the deadly serious allegations in Smith’s complaint will do more than simply let Trump and others off the hooks for their potential crimes. It will make future criminal activity related to American elections much more likely. And it all could have been avoided if McConnell, Garland, and especially the Supreme Court had done the right thing.
The Smith report notes specifically how if the prosecution had been allowed to go forward, the Supreme Court’s decision in the Trump immunity case stood to give Trump multiple attempts to further delay prosecution and to exclude relevant evidence through the Court’s newly-created and historically unsupported murky new immunity doctrine. The Court ignored the danger of election subversion before it, worried instead about impingement on a hypothetical future president’s power.
Now we will see the ramifications of this epic failure to prosecute what I had called “the most important case in U.S. history.”