Donald Trump and the failures of the American legal and political systems

Sometimes in the midst of the chaos it’s easy to lose sight of what should be really obvious facts. The flip side of this is that the chaos is real, and Monday morning quarterbacking is a product of failing to take that fully into account.

In that light, let’s go back to the period between January 6, 2021, when Donald Trump’s conspiracy to overthrow the government of the United States culminated in his sending of an insurrectionist mob to the Capitol, to try to keep Congress from certifying his loss in the presidential election two months earlier, and February 13, when the Senate failed to convict him after his second impeachment by the House.

Consider the following: when House Republicans were faced with the question of impeaching Trump, they weren’t considering whether or not he should be removed from the presidency. This made it a very odd impeachment proceeding — one unprecedented for any federal officer in US history — in that removing the officer from office was not actually a factor in the impeachment. By the time the impeachment vote was held on January 13th, it was perfectly clear that there was no possible way a Senate trial would begin to be held, let alone completed, prior to the end of Trump’s first presidency seven days later.

Thus the House impeachment vote had only two functions, one symbolic and the other practical. The symbolic function was to make a statement that attempting to overthrow the lawful government of the United States via violent insurrection was a disqualifying act for anyone who wanted to hold the office of president of the nation. The practical function was to actually disqualify someone who had done so from holding that office in the future.

The Republicans in the House voted by a margin of 197-10 to refuse to make that statement, and to implement that legal disqualification.

So much has happened since then that it’s easy to lose sight of how shocking this almost unanimous act of gross dereliction of duty should have been under the circumstances. If people had known on the night of January 6, 2021, that the Republican party would vote almost unanimously to refuse to take the under the circumstances remarkably modest step of merely disqualifying Donald Trump to be president again at some time in the future, I think even most Savvy Observers would have been at least a little shocked. I know I would have been anyway.

A month later, Senate Republicans disgraced themselves nearly as emphatically, voting 43-7 not to exclude a man who had tried to lynch them from holding future federal office.

Now I want to look back on those developments in the light of the biggest failure by far of the Biden administration, which was the failure to make any serious attempt to hold Donald Trump and his main accomplices criminally responsible for trying to overthrow the government, until it was too late for such an effort to possibly succeed.

Back in 2021 and 2022 and even into 2023, you had lots of LGM commenters, many of them possessing law licenses if not guns or money, gaslighting themselves and everybody else via claims that in fact this wasn’t true at all, and that the Biden administration had vigorously prosecuted Donald Trump’s sedition in precisely the right way, because having done anything other than first carrying out a two year “investigation” into whether Donald Trump tried to overthrow the government before actually trying to bring the legal process to bear against him and his main henchmen would have been an abuse of that process.

I’ve noticed that these arguments have pretty much disappeared into the internet ether in the year of our Lord 2024 so apparently there are limits, but for a long time there was great mockery brought to bear upon anyone here who obviously didn’t understand How These Things Are Done.

Now I’m going to pivot a little, and say the following: I fully understand why, and even to an extent sympathize with, what Joe Biden via Merrick Garland did, or more precisely didn’t do. What Joe Biden must have assumed during the first weeks of his presidency was something like this:

January 6, 2021, was a deeply traumatic event. Surely in its wake the Republican party was going to reject Donald Trump, at least in terms of treating him as a future presidential candidate. Yes the House vote on January 13 and the Senate vote a month later should have been sobering events for people who took this view, but I recall quite clearly that a very large number of LGM commenters also essentially assumed that Donald Trump was finished as a political figure. Lots of commenters were, well into 2022 and even early 2023, certain that Ron DeSantis, or at least someone other than Donald Trump was going to win the GOP nomination in 2024. Maybe the Republicans weren’t sane enough to impeach and convict Trump even when it was a purely symbolic act, but surely they weren’t insane enough to re-nominate him and vote for him for president again.

One person who very clearly held this opinion was Joseph R. Biden, 46th president of the United States. And it makes all the sense in the world that Biden would hold this view. Joe Biden is above all an institutionalist, and it must have been practically inconceivable to him, in those first crucial weeks of his administration, when he had to decide whether the government would actually treat Donald Trump as the seditious criminal that he so very clearly was and is, that America’s legal and political institutions would fail as badly as they have in fact subsequently failed.

What Biden gambled was that not vigorously prosecuting Trump for his crimes from the first day of Biden’s presidency would avoid inflaming seditious passions further, that Trump would be completely discredited politically, and that therefore Biden could avoid any appearance of engaging in lawfare, or politically motivated prosecution, or whatever prettifying excuse you want to label the decision not to even attempt to enforce the criminal law against Donald Trump until it was too late to even try to do so.

Note that I’m not arguing here that such an effort would have succeeded. There are plenty of reasons — six in particular — to assume that it would have failed. Which is no doubt yet another reason why Biden decided not to try to prosecute Trump.

You can say that Biden made no such decision, and that this is all on Merrick Garland, but that of course is just another way of saying that Joe Biden is the kind of institutionalist who wasn’t going to intervene in any way if his hand-picked Attorney General decided not to prosecute Trump. It’s institutionalists all the way down in other words.

Here’s a prediction for you. If Kamala Harris gets elected president on Tuesday, there is a 98.44% probability that the New York Times will run an op-ed by some Very Serious Person sometime between November 6th and January 20th, imploring her to pardon Donald Trump for all his federal crimes.

This election is among other things a referendum on whether Donald Trump should in fact be held legally accountable for his crimes, and most particularly the crime of trying to overthrow the government of the United States.

I trust that Kamala Harris will understand the assignment, which to put it mildly won’t be an easy one. But fascism wasn’t defeated in a day, or a decade for that matter.