Our prosecutors completely failed us

How did we get here? In large part, because prosecutors failed to prosecute Donald Trump swiftly when they had the chance.

Let’s get real about what happened in America the last few years and how we got to where we are now.

Before one gets into the post-mortems and internecine warfare that accompany any Democratic electoral loss, there is the more fundamental fact that Donald Trump could not now be president-elect if he were not a free man rather than in prison, where he ought to be.

Thus the fundamental problem is that prosecutors did not act swiftly enough to bring Trump to justice — and this failure of leadership and its likely outcome were not only foreseeable but foreseen.

Too little, too late: prosecutors got Trump into court in only one case — and they got him into prison in zero — despite having four years in which to do so.

Nothing to Bragg about

The first place to look for the failure to prosecute Trump is Manhattan, where Donald Trump was convicted of 34 felony counts but will likely never see the inside of a prison cell for doing so.

For starters, let’s remember that the events of that case occurred in late 2016 and into 2017 — when Donald Trump paid hush money to pornstar Stormy Daniels to hide his extramarital affair with her, then committed fraud by fabricating the fiction that the hush money was merely legal fees paid to his general counsel, Michael Cohen. It was a campaign cover-up that helped Trump win in 2016. Eight years ago!

The campaign cover-up case then got wrapped up in a much larger Manhattan DA investigation into Trump’s financial frauds, which led to a long battle to obtain Trump’s tax returns and the financial records underlying those returns — which the Manhattan DA managed to win after two US Supreme Court cases.

That was arguably a necessary and meritorious delay. One can look backward and say that they could have and should have separated the campaign cover-up (which did not appear to involve the tax records) from the larger financial fraud case (which did require the tax records). But it’s at least arguable that prosecutors were correct in waiting to bring any charges until they had all the evidence.¹

Fair enough. But the Manhattan DA received those tax records in February 2021. By the end of 2021, they were ready to bring a much larger case for financial fraud — for the campaign cover-up but also the systematic overvaluation of Trump’s real estate properties (which then became the basis for the New York AG’s civil fraud case against Trump).

However, the longtime DA, Cy Vance, was retiring — and the newly elected DA, Alvin Bragg, then scuttled the case in early 2022, as we all know. The campaign cover-up case was then revived in 2023, resulting in the indictment in April 2023 and the conviction in May 2024.

That delay cost us a whole year — and that year was everything.

Imagine if Trump had been convicted in May 2023. He then would have still tried to delay his sentencing given that he was already running for president at that point, but even given the system’s weakness for allowing delays to brazen offenders like Trump, he still probably would have been sentenced in 2023. The case might be currently pending appeal, but there is a chance that Trump would already be sitting in a New York State prison right now had the case not been delayed.

Now we will never know. That is the tragedy here.

And once again, I have yet to hear an iota of evidence or argument that the delay was necessary for substantive reasons. In other words, there was nothing ever wrong about the campaign cover-up case. It was a winning case in 2022, and it was a winning case in 2023. Prosecutors did not unearth a smoking gun in the interim. They did not flip a star witness. The case was the same. What changed was Bragg’s willingness to bring it, apparently. This kind of preventable delay, born of political timidity, is simply inexcusable — and we all saw it happening and said all of this at the time it happened.

Finally, yes, Trump is slated to be sentenced in this matter. But there is a strong chance that Trump is about to file a motion to stay the Manhattan proceeding until he is no longer president — and a strong chance that the Manhattan DA will not oppose the motion, or that Judge Juan Merchan will grant it. Even if the DA opposes it, and Merchan denies it, any such denial will likely be overturned on appeal, either by appellate courts in New York, or by SCOTUS.

So the case is on a trajectory to oblivion — all because of politically motivated delays and excessive caution.

The insurrection will be televised, but not prosecuted

As for the federal January 6 case, there is an even more clear-cut case of gobsmackingly inexplicable delay and caution. In the immediate aftermath of J6, there was a broad sentiment in America that it was a horrible, despicable act of insurrection, and that Donald Trump caused it and was responsible for it. And only two weeks later, on January 20, 2021, Joe Biden was inaugurated and took office.

But nothing happened to Trump. Or anyone in his inner circle. Or anyone at all, other than the thugs who actually stormed the Capitol, assaulted over 140 police officers, and went hunting for various officials — especially Mike Pence and Nancy Pelosi — whom they may have killed given the opportunity.

Or, as many have termed it, prosecutors went after the boots — but not the suits. The determination of Trump’s culpability, in a catastrophic blunder, was delegated to Congress, which is not a law enforcement body and should never have been tasked with judging whether Trump broke the law. It is a political body, and it rendered a political decision, as Trump was impeached in the House (again) but not convicted in the Senate.

Back at DOJ, there does not appear to have been any real, prioritized investigation into the organizers of January 6 until sometime in 2022 — and the appointment of Jack Smith as a special counsel did not occur until November 2022, more than 22 months after the attack on the Capitol.

If there had been a concerted effort to investigate the entirety of the January 6 conspiracy from Day One of the Biden presidency — or, say, from the first day of Merrick Garland’s term as attorney general, on March 11, 2021 — then we would have seen Trump indicted in 2022, not 2023. Even with the immunity issue gobbling up so much time, we could have seen a trial in 2024.

At trial, we would have seen what the American people deserve to have seen: a public examination of everything that happened leading up to January 6, with testimony from everyone involved. After such a public process, a jury may or may not have voted to convict Trump — but there is absolutely zero doubt that he should have stood trial. A group of grand jurors in Washington voted for that, and We the People have now been denied our own day in court.

Even more pressingly, We the People deserved that trial so that we could see for ourselves what the arguments and evidence were — and not only whether Donald Trump was guilty or not guilty but whether he was fit or unfit to hold office again. We deserved that. We needed that.

Now we will never have it. Rather than even trying to fight the good fight — resisting Trump’s efforts to halt the prosecutions once in the White House — Smith and DOJ are preemptively waving the white flag of surrender and closing up shop on their cases, both the January 6 case and the classified documents case.

Why? Not because of the Constitution. Not because of a statute. Not because of a regulation. But because of an internal policy memo within DOJ stating that sitting presidents are not to face criminal indictment or prosecution.

None of us voted for this. It was never debated in Congress. It was not handed down by a court.² And yet it is now being used to kill the most important prosecution ever in the history of the United States — allowing someone to be president even after being indicted for violating the Constitution and multiple federal laws to overturn the results of a presidential election and to overthrow the government itself.

Nor have we seen — nor should we expect to see — any of the indictments or prosecutions that we deserved to see regarding the other co-conspirators of January 6. None of them have any immunity. None of them are protected by self-sabotaging DOJ memoranda. And yet none of them are going to be brought to justice, barring some last-minute reversal in the months to come.³

The appalling lack of action or gumption, the pearl-clutching walking on eggshells, the disgusting obeisance to a presidential office that is now only an inch shy of becoming a monarchy or dictatorship — it is all absolutely despicable. It is the prosecutorial equivalent of Neville Chamberlain’s appeasement at Munich. It will be tarred forever with historical infamy: if, that is, there is any more history to be written by those who believe in American democracy.

In both cases, with both Bragg and Garland, their failure of leadership has led us to failure.

And that’s all before we even get to these prosecutors’ continued failures to do their jobs — the apparent lack of any effort to investigate Donald Trump’s reported violations of the Logan Act by engaging in secret communications and under-the-table deals with foreign leaders in the past few years, the apparent lack of any real investigation into the obvious Russian interference in the 2024 election, from the torrent of social media bots to the funding of right-wing influencers to the 67 fake bomb threats called in on Election Day, mostly to heavily Democratic precincts in heavily Democratic cities. Or even before that, the complete failure to follow up on the obvious findings of obstruction of justice from the Mueller investigation, which only stopped short of indicting Trump because he was still in office, pursuant to the DOJ memo — and yet he could have and should have been prosecuted the very moment he left office in 2021.

At this extreme degree, caution becomes acquiescence. And that acquiescence to authoritarianism and corruption and fraud, by the very law enforcement authorities sworn to protect us from such evils, is the horrific legacy of the past five years and perhaps the single greatest cause of the twilight in which we now must persist.

1. I’m giving them the benefit of the doubt on this point, at least, although I do have to say that it feels like a poor decision. And not just in hindsight. The two parts of the case were connected to one another only tangentially. They did not need to be brought together. Prosecutors could easily have brought the Stormy Daniels case on its own, all the way back in 2021, even as they were still trying to figure out whether there was a criminal case to be made out of the evidence of property overvaluations and misleading financial statements; then if the latter material merited prosecution, a second indictment could have been brought.

2. I also wonder if it is something that Jack Smith and his team agree with, but given the usual protocols at DOJ, they almost certainly had no choice in the matter. The DOJ memo was written and later updated by DOJ’s Office of Legal Counsel (OLC), which is the preeminent authority within DOJ regarding legal questions. OLC decisions are gospel within DOJ. Smith and his team seemingly have done heroic work despite the delays that preceded their appointments, and I imagine that many of them are utterly devastated by this turn of events.

3. Of course, yes, even if the unindicted co-conspirators such as Rudy Giuliani and John Eastman were to be indicted by Jack Smith now, Donald Trump, once in office, would likely shut down those prosecutions and potentially pardon the perpetrators. But just because he would take such actions does not mean we should anticipate them and passively acquiesce in advance. This is one of the first principles of resisting authoritarianism: do not consent in advance. We should be forcing Donald Trump to shut down those prosecutions, rather than dropping them in advance.