Accountability

It wasn't delivered by the election or the criminal justice system, but we can't give up

Photo by Elena Mozhvilo on Unsplash

Among the things that should not have been on the ballot this year was Donald Trump’s freedom. Along with the question of whether to award the presidency to someone who tried to steal it and whether to return a felon to power was the question of whether to abort Trump’s criminal prosecutions and short-circuit punishment for the crimes for which he had been convicted.

The public should not have been asked to make this judgment. Election choices are complicated enough when voters have to squeeze multiple and potentially competing desires, values, prejudices, and fears into a binary decision.

The question of Trump’s freedom belonged in the criminal justice system, where trials and potential convictions on the insurrection and stolen document charges would have settled the matter.

That Trump’s judicial fate came to rest on a decision voters were likely to make for other reasons represents a breakdown of the political and judicial process. Whatever may have happened at the Justice Department to move the prosecution of Trump so close to the 2024 election—and I am not in a position to know how slowly or quickly Justice moved behind the scenes—there should have been enough time to resolve the cases against Trump before the election. Is it possible for prominent federal officials to be charged and tried in a reasonable period of time? Of course it is. New Jersey Sen. Bob Menendez was indicted on bribery charges in September 2023 and convicted by a jury ten months later.

But with the Supreme Court enabling Trump’s delay strategy, a MAGA judge willing to do Trump’s bidding in a Florida court, and a defense team that used and abused every opportunity to delay, Trump was able to turn Election Day into judgment day—a high-stakes gamble to forestall all legal consequences until he was re-elected, at which point he would again be president and therefore untouchable.

For Trump, staying out of prison was likely the primary reason he ran for president.

The success of his strategy became clear last week, when Jack Smith moved to dismiss charges related to Trump’s attempt to overturn the 2020 election and his retention of classified White House documents after he left office. Although the dismissals were filed in a manner that technically allows for them to be revived after Trump once again leaves office, there would be legal avenues for Trump to pursue to make sure the charges never again see the inside of a courtroom. His lawyers would argue that the statute of limitations had run out by then and, in any event, a lot of things would have to go right politically for there to be the means and the appetite to resuscitate the charges in 2029.

And given the outward deterioration in Trump’s physical and mental condition during the past few months, it’s possible that he will no longer be in any condition to stand trial should he make it to the end of his term. I offer no medical expertise, but it wouldn’t surprise me if he needs long-term care by that point (or much sooner).

So while it is possible to envision a scenario where justice will not ultimately be denied—where an aggressive attorney general in a Democratic administration successfully overcomes obstacles to reviving Smith’s work or prosecutes Trump for yet-to-be committed crimes while he is lucid enough to understand the charges against him—as a practical matter Trump most likely avoided accountability for what he did.

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Apart from the maddening nature of the injustice, the failure to hold Trump accountable for his criminal activity is a critical lost opportunity in the effort to restore the integrity of our institutions and move beyond MAGA.

The Trump era has been made possible by Republican enablers who have calculated that their self-interest is better served by supporting Trump than opposing him. Successful criminal prosecutions could have begun to reverse these calculations by holding Trump responsible for his crimes in full view of the non-MAGA portion of the electorate.

Likewise, defeating Trump in the 2024 election would have exposed the vulnerability of MAGA as a political movement. After beating back MAGA challenges in 2018, 2020, 2022 and 2023, a defeat this year would have left Republicans pondering their future as a MAGA party.

Accountability in the jury box. Accountability at the ballot box. Both necessary ingredients for moving past this dark political moment. Had we experienced accountability in court, we may have been more likely to secure electoral accountability. Instead we got neither. And because we are now facing years of an administration that will continue to tear at the fabric of democracy, whatever institutional restoration the Biden administration accomplished will have to be redone, most certainly from a more broken baseline.

The sobering conclusion from this year’s election is America is not yet ready to turn the corner on Donald Trump. We have elected to tear down rather than build up.

But that does not mean we should give up on accountability. Far from it. The dismal electoral record of MAGA candidates not named Donald Trump is clear, and political pendulums always swing. Trump is already misinterpreting and overstepping his mandate. He will make noise about disregarding the two term presidential limit, but there is little chance he will appear on a ballot again. There should be ample opportunities to come back.

Before that can happen, we need to make sure we preserve the means for a comeback. After returning a felon and insurrectionist to the White House, we now need to be attuned to preserving the mechanisms for future accountability. Trump has broadcast his intention to shelter himself from being held responsible for anything he does, and the success of his judicial delay plan has to embolden him.

This means preserving the fundamental right to oppose. To organize and protest. To vote.

The failure to hold Trump accountable in court and in the election is a blow. But it is not the final word in this traumatic drama. As long as we can assemble and vote without fear, future accountability moments will come and we will be poised to make the most of them. Insisting on maintaining our rights is now the work of this new phase of opposition.