Jack Smith Gives Up – The Atlantic

Early this morning, the Department of Justice published the report of special counsel Jack Smith on his investigation into Donald Trump’s attempt to overturn the results of the 2020 presidential election. The saga of the US criminal justice system’s efforts to hold the coup plotter accountable is thus closed. There will be no prosecution. Compared to the current outcome, it would have been better if President Joe Biden had pardoned Trump for the January 6 coup attempt.

A pardon would have at least maintained the theory that violent electoral overthrows are wrong and illegal. An apology would have said: The US government can hold violent actors accountable. It just chooses not to do that in this case.

Instead, the special counsel’s report delivers a confession of the US government’s helplessness. Smith claims there was sufficient evidence to convict Trump of serious crimes—and then declares the constitutional system powerless to act: The criminal is now the president-elect; therefore his crime cannot be punished.

The report suggests that if the law had moved faster, Trump would be a convicted felon today, not the president-elect. But the law did not move quickly. Why not? Whose fault was it? Fingers will point, but finger pointing means nothing. What is decisive is the result and the message.

Trump swore to uphold the Constitution in January 2017. He violated that oath in January 2021. Now, in January 2025, he will swear it again. The ritual survives. Its meaning has been lost.

In 2022, a prominent conservative intellectual proclaimed that the United States had entered a “post-constitutional moment”:

The conservative was Russell Vought, one of the co-authors of The Heritage Foundation’s Project 2025 policy plan, and now President-elect Trump’s choice to be director of the Office of Management and Budget, which controls and coordinates all actions of the executive branch. The post-constitutional moment that Trump supporters once condemned has now become their opportunity. They have violated the most fundamental rule of a constitutional regime, the prohibition of political violence – and instead of suffering the consequences, they have survived, profited and returned to power.

If anything, the breach has made them more powerful than they would have been otherwise. Bob Woodward gives an account in his 2018 book, Fearthat Gary Cohn, Trump’s chief economic adviser in the White House, thwarted Trump’s intention to withdraw from NAFTA and the US-South Korea trade agreement by grabbing the memos from the president’s desk. The story suggests something important about the difficulty Trump had in imposing his will in his first term. But in his upcoming second term, Trump has made defending his actions in 2021 a test of loyalty. Last month, New York Times the interview individuals involved in recruitment for senior roles in Trump’s Department of Defense or intelligence services; several of them had been asked whether Joe Biden won the 2020 election and whether Trump did something wrong in his challenge for the January 6 election. The clear implication was that one should answer anything but No and no would have been disqualifying. There will be no more Gary Cohns, only JD Vances, there will deny the previous election and defend Trump’s actions to overturn it.

To this is what a post-constitutional moment looks like.

Before Trump, US law was quite unclear regarding presidential legal immunity. In 1982, the United States Supreme Court ruled that a president could not be sued for his official acts. In 1997, the Court ruled that a president could be sued for personal acts unrelated to his office. Both of these rulings applied only to civil cases, not to criminal cases.

For almost 250 years after the adoption of the US Constitution, the question of the president’s rights under the criminal law did not arise. Trump’s propensity to make mistakes forced upon the country the question: Was a president of the United States subject to criminal law or not? Last year the Supreme Court became delivered a mess of an answer whose main tenet seemed to be: Here is a complex, multi-part and highly subjective set of questions that you must answer first. Relive each and every one of them as we wait to see if Trump wins or loses the 2024 election.

Now the Smith Report comes with its simpler answer: If a former president wins re-election, he has immunity for even the worst possible crimes committed during his first term.

The incentives in this outcome are clear, if perverse. And they are deeply scary for the future of democracy in the United States.