History awaits!

As I pondered this depressing binary in the final days of the race, I thought about how we got here. There are, of course, many answers to this, but the question I have been thinking about the most is what role the criminal justice system plays in our current predicament. Has this system – tasked with protecting the public but seemingly incapable of delivering consequences to any individual – failed the American people? Or are we on the verge of failure by re-electing this man, despite the hard work of decent, well-meaning civil servants and professional lawyers who manage the complex, grueling machinery of American law?

I've bounced back and forth between these two perspectives, but on the eve of this election, I think I've figured out the answer: Time and time again, the systems tasked with protecting the public from a dangerous criminal like Donald Trump have failed. chose the path of appeasement, which is one of the main reasons we are about to re-elect a man who threatens to end the system of democracy that Americans have known for almost 60 years. At the same time, the law has exposed Trump's blatant criminality to the point where we will only have to bear the inevitable consequences ourselves if we extradite Donald Trump – a man who has promised violence against his political enemies and mass deportations of some of the most vulnerable people in this country – absolute , uncontrolled power. Blame the system And the voters!

Criminal law has been on Trump's heels for years. First, there have been many, many sexual assault allegations over the decades – one of them being E. Jean Carroll's claim that he attacked her in a department store in the 1990s, for which the law actually held him responsible. Many of these cases were reported years later and were never investigated by authorities. However, given the sheer number of credible claims and the fact that this is a man who has secretly bragged about assaulting a woman, it's hard not to believe them.

Sexual assault allegations aren't the only area where Trump has gotten off lightly. Consider the Manhattan district attorney's 2012 criminal investigation of Trump and his children Donald Jr. and Ivanka for housing fraud. According to a New Yorker report, Vance “overruled his own prosecutors” and dropped the investigation after Marc Kasowitz – Trump's lawyer and Vance donor – contacted Vance personally. These are not even the only financial misdeeds by Trump for which he has avoided detailed investigation.

Then there are the crimes Trump has committed since his rise to political power. First, there was extensive evidence that Trump obstructed justice in 2017 to prevent a full investigation into his dealings with Russia during the 2016 election and transition period. While this evidence was laid out in the Mueller report, special counsel Robert Mueller, contrary to the wishes of some of his top prosecutors, refused to formally allege that Trump had obstructed justice. He also did not use his full subpoena power to investigate Trump's finances. “The evidence that he obstructed justice is so overwhelming, but we're not really saying that,” said Mueller prosecutor Andrew Weissmann. “I think the American public has been done a disservice, quite frankly, because we haven't been very clear about what we've concluded.” There were never any consequences for these crimes.

Then there is the 2019 Ukraine extortion program for which Trump is responsible Was impeached in the House of Representatives… but ultimately acquitted in the Senate. Despite vigorous efforts by the House Intelligence Committee, investigators ultimately failed because Trump refused to cooperate with supposedly mandatory subpoenas. Trump's Justice Department under Attorney General William Barr swept the entire matter under the rug without investigating, and Trump's allies in the Senate helped him avoid a single testimony in court. Then they voted to acquit.

Then there are the crimes he committed that are ultimately prosecuted by prosecutors did decide to press charges that have not yet been brought to trial. Chief among these are the election theft and the Jan. 6 attack on the Capitol in DC and Fulton County, Georgia, neither of which could be moved forward before November. The Georgia case stalled due to personal missteps by Fani Willis. The DC January 6th^Th The case appears sufficiently derailed by the Supreme Court's decision, which grants Trump and future presidents virtually untested immunity for crimes they commit while in office. Meanwhile, in the Mar-a-Lago case over stolen secret documents, prosecutors brought in a Trump-appointed judge who was willing to do anything to protect their benefactor, up to and including dismissing the case based on a novel and a made-up theory about the illegality of the special advisers themselves.

It is certainly notable that the sabotage of Trump-appointed judges and judges played a key role in these cases. But there was another problem, at least in the federal cases: Attorney General Merrick Garland's decision to wait until the last possible moment to appoint a special prosecutor and ultimately file charges.

According to reports in the Washington Post, prosecutors at the Justice Department were prepared to investigate Trump as early as early February 2021, immediately after the Jan. 6 attack on the Capitol and Trump's attempt to overturn the election. During deliberations, however, Justice Department officials acknowledged “the political risks” and ultimately decided to pursue low-level rioters before targeting anyone close to Trump. The Justice Department refused to investigate Trump's election fraud plan whole yearuntil Michigan Attorney General Dana Nessel referred the matter to the department. The investigation only really began to focus on Trump himself when public pressure mounted after the bipartisan House committee's Jan. 6 investigation produced a trove of testimony about Trump's damning behavior that day and in the lead-up to the Capitol insurrection.

The DOJ will deny this to the end, but it seems clear that Garland was unwilling to go there before 2022 because the law was perceived to be holding Trump in a bind following his decline in popularity following the insurrection. The reason for the delay was concern about exposing our country to the unpredictable consequences of prosecuting a former president. There was a legitimate fear that this would pave the way for a future “banana republic,” as former DOJ prosecutor Frank Bowman put it to me, i.e. But in retrospect, Bowman believes Garland waited too long, given the foreseeable procedural hurdles to a prosecution of this complexity and Trump's unmatched ability to challenge such a case. “Perhaps you can criticize him for delaying this decision too long, given what he and his senior advisers certainly knew: once you decide to do it, it won't be a quick process,” he told me.

Then there was the classified documents case, which Bowman called a “slam dunk” but which Garland also delayed. Two years ago, I wrote that this decision to delay prosecution and appoint a special prosecutor would only benefit Donald Trump. Now we know that the decision to appoint a special prosecutor would be the basis for Judge Aileen Cannon's decision to dismiss the case.

Finally, there is one case that actually made it to court: Trump's conviction in Manhattan for violating election and fraud laws in his scheme to pay Stormy Daniels to keep her story of an affair secret before the 2016 election. Even in this case, however, Trump could avoid responsibility because the sentencing was postponed from June to mid-September and then to November 26 in response to the Supreme Court's immunity decision. If he wins the election, it is almost impossible to imagine a future conviction. Even if he loses, the case could still end up in procedural hell because of the Supreme Court's immunity ruling. This felony conviction itself appears to have done little to nothing to enhance Trump's appeal to the public, as those of us who were present at the trial struggled to convey to the general public the depth of evidence of Trump's criminality .

To be sure, there are many reasons for the failure of the legal system on this side of the list, from Merrick Garland to the prosecutors in every jurisdiction where Trump's crimes were committed. However, on the other side of the book is a simple truth: Americans know all about his crimes And for about 50 percent of us, it really doesn't seem to matter. “Somehow we thought there was something special there – better informed, more virtuous, more something– about Americans unlike anyone else in human history,” Bowman noted. “And it turns out we’re wrong.”

Ultimately there is no binary. Voters have the information they need to assess Trump's criminality when they go to the polls, and they could still make the wrong choice. Yet the law has not done enough to protect the country. It could have happened more and faster. It could have given us more information and exposed Trump's crimes more quickly and comprehensively. It could have locked him up high.