The end of the quest for justice on January 6

Donald Trump will never face federal criminal charges for trying to corrupt the 2020 presidential election, the basic democratic procedure. Nor will he ever face consequences for brazenly removing highly sensitive documents from the White House, refusing to turn them over, and trying to hide them from the government.

Special counsel Jack Smith, representing the Justice Department, filed today to dismiss charges in the two federal cases he oversaw against Trump. Smith really had no choice. Trump had promised to fire him and end the cases as soon as he took office on January 20. (The newly elected president allegedly planning to fire (not just Smith, but also career lawyers who were assigned to his team.)

In both cases, these were crimes that only a president could commit: No one else could have tried to stay in office in the same way, and few people could have left with boxes full of these documents. And only a newly elected president with almost unlimited resources could have gotten away with them.

Read: The gulf between Trump and Trump

Trump pulled off this legal trick with a simple and effective strategy of running down the clock until he was re-elected president. Traditionally, defendants have had two ways of hitting a rap. They could convince a judge or jury that they did not commit the crime, or at least that there is not enough evidence to prove that they did. Or they could be looking for a way to get jumped on a technicality. Faced with a choice between A and B, Trump chose option C: weaponize the US legal system’s procedural protections against himself.

The problem is not that these protections exist. They are a crucial part of ensuring justice for all defendants. But as he has done in other circumstances, Trump sniffed out how the things that make the American system great can also be exploited cynically. If you have deep enough pockets and very little shame, you can snowball a case through procedural motions, appeals and long shots, enough to slow the case to a crawl. And in Trump’s case, delay was a victory—not because he could delay it indefinitely, but because he will soon be president again, with the Justice Department under his authority.

The strategy was not without risks. His claims of presidential immunity drew derision from many legal scholars as well as judges at the first two levels of the federal court system. But the Supreme Court took as long as possible to issue a ruling that essentially agreed with Trump — the majority included three Trump-appointed justices plus a fourth whose wife was deeply involved in the election subversion.

Even then, the strategy was dependent on Trump winning the presidential election, which was not a sure bet. Had he lost, the cases would likely have continued, and he might well have lost them. The dossier, while not as serious as Trump’s attack on the structure of the Constitution, was clear in its facts. And in the only criminal case against Trump that went to a jury — widely seen as the flimsiest case against him — he was quickly convicted. (Sentencing in that case has now been paused indefinitely, also because of Trump’s election.)

But in Attorney General Merrick Garland, Trump drew the ideal foil. The man overseeing the two cases against Trump is obsessive about proceduralism. His view was that the best way to restore the justice system and the Justice Department after the first Trump presidency was to do everything exactly by the book, no matter how long it took. It took a long time — Smith wasn’t appointed until November 2022, two months after the paper coup began and three months after the FBI seized documents at Mar-a-Lago. When Smith was indicted, in the summer of 2023, the timeline was tight, either for convictions quickly enough to inform voters or to avoid impeachment if a Republican won the presidency.

This was the problem with Garland’s calculation: It may have temporarily restored the proper functioning of the Justice Department, but it did not win back public approval, nor does it benefit the Justice Department in court. Garland appointed Smith as special counsel after Trump entered the presidential race to create the appearance of isolation from politics. Some good that did: Trump-appointed Judge Aileen Cannon issued an overtly political ruling throwing out the case because she deemed the appointment unconstitutional.

David Frum: A good country’s bad choice

Most importantly, Garland’s attention to detail meant that the system failed to do the basic job of holding someone who had committed serious crimes to account. And partly because of that, Trump will soon return to the White House with the power and intent to destroy all the independence and careful procedures that Garland did so much to protect.

Not only that, but the Justice Department will be led by the lawyers who developed Trump’s strategy. His new nominee for attorney general, Pam Bondi, spoke outside his trial in New York and defended him in his impeachment. His appointed Deputy Attorney General and Principal Associate Deputy Attorneys, Todd Blanche and Emil Bove, represented him as defense attorneys. D. John Sauer, who argued the immunity case at the Supreme Court, will be an associate attorney, the fourth-ranking position at the DOJ.

The lack of accountability for January 6 is a violation of the constitution. But the lesson Trump will take from charges being dropped, along with the immunity ruling, is that the system is unable to hold him accountable for most of the rules he breaks. The insults will continue.