The Long Surrender
Merrick Garland and Jack Smith give up.
“President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn't get away with anything yet – yet.” — Mitch McConnell, February 13, 2021.
Explained Mitch: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”
But Mitch was wrong. Cosmically and catastrophically wrong.
On Monday, Special Counsel Jack Smith moved to drop all of the federal charges against Trump. I’m sure the smart kids will explain all the reasons that he had no choice, but there’s a reason you felt nauseous when you heard it: The DOJ’s surrender was unilateral and unconditional.1
The fight to hold Trump accountable for his crimes ended not with a fight, but with barely a whimper. As David Graham writes in the Atlantic:
Donald Trump will never face federal criminal charges for trying to corrupt the 2020 presidential election, the fundamental democratic procedure. Nor will he ever face consequences for brazenly removing highly sensitive documents from the White House, refusing to hand them back, and attempting to hide them from the government.
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And I’m not going to surrender.
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Look, we knew how this was going to end. Trump ran to keep himself out of prison, and as Tom Nichols notes: “Mission accomplished.”
But the DOJ didn’t wait for Trump to shut down the indictments or place himself above the law.
They did it for him.
On Friday, the Wapo reported that Trump planned a January 20 Massacre, in which he would fire Jack Smith’s entire team, “including career attorneys typically protected from political retribution.”
Even in our numbed political environment, that would have been an extraordinary moment, a fire bell in the night for the rule of law and democracy. But Merrick Garland and Jack Smith let Trump off the hook. Voluntarily. And before he even took office.
The twin requests by Mr. Smith — made to judges in Washington and Atlanta — were an acknowledgment that Mr. Trump will re-enter the White House in January unburdened by federal efforts to hold him accountable through charges of plotting to subvert the last presidential election and holding on to a trove of highly classified material following his first term in office.
For years, the Biden Administration and others have described this moment as an existential threat to democracy. But, instead of looking him in the eye and daring him to “Try It,” Garland and Smith shrugged and gave up.
That’s one of the reasons you feel so queasy: The outcome may have been pre-ordained, but as Alexander Solzhenitsyn said: “Let your credo be this: Let the lie come into the world, let it even triumph. But not through me.”
Trump was going to get away with his lies and his crimes. But it didn’t have to be through them.
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But norms, amirite?
The DOJ has a policy, established by the department’s Office of Legal Counsel, against indicting sitting presidents. In his motion to dismiss, Smith wrote that the rule, “is categorical and does not turn on the gravity of the crimes charged, the strength of the government’s proof or the merits of the prosecution, which the government stands fully behind.”
We know what the fate of those policies, rules, standards and norms will be in Pam Bondi’s DOJ. But I’ll let others hash out the legalisms here, because I want to focus on the pre-emptive capitulation — just another milestone in the long surrender to the lawlessness of the man who is about to reoccupy the Oval Office.
By now, we’ve become inured to all of the surrenders that brought us to this point: The rolling capitulation of the GOP; Merrick Garland’s feckless failures2; the senate’s surrender to Trump after January 6; the indifference of the electorate to his criminality; and, more recently, the rush to bend the knee by the tech oligarchs, members of the media, the courts, and now the DOJ.
Irony Alert: Despite the groveling and appeasement, there will still be a January 20 Massacre. Trump’s allies will wage a campaign of retribution against the prosecutors who tried to hold him accountable. He will pardon the January 6 rioters and assure his shock troops that their loyalty will be rewarded.
And he will be emboldened to defy what remains of the law.
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One of the purposes of the law is deterrence. The fear of possible prosecution is supposed to deter citizens and rulers alike from committing crimes. But what deterrence is left for Donald Trump?
The Supreme Court has said he has broad immunity. Impeachment is a dead letter. The voters don’t give a sh*t. And now the DOJ has folded its tents.
All of this means that Trump will retake power secure in the belief that he is, in fact, above the law. And, for all intents and purposes, he’s right. No one will stand in Trump’s Oval Office and tell him that he can’t violate the constitution or break the law. If they try, they’ll be laughed out of the room.
ICYMI: Elon Musk doesn’t own Bluesky
Follow me? You’ll find a lot of old friends at the non-Elon site. You can find me here: https://bsky.app/profile/sykescharlie.bsky.social
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Fortunately, we have dogs
Finally
But, but, but, Charlie, the charges are going to be dismissed “without prejudice” which means that they can be re-filed in 2029. Which will never happen, so stop smoking that particular brand of hopium.
[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 precisely by the book, no matter how long it took. It took quite a while—Smith was not appointed until November 2022, two months after the paperwork coup began and three months after the FBI seized documents at Mar-a-Lago. By the time Smith brought charges, in summer 2023, the timeline was tight, either for verdicts soon enough to inform voters or to avoid dismissal if a Republican won the presidential election….
Most important, Garland’s attention to detail meant the system failed to do the basic work of holding accountable someone who had committed serious crimes in plain sight. And partly because of that, Trump will soon return to the White House with the power and intention to destroy all the independence and careful procedures that Garland took such pains to protect.
This is too painful to read all at one time.
Just unconscionable and unforgivable. Merrick Garland failed our country.