One word came to mind when I heard the news this week that Donald Trump had received a target letter from the Justice Department special prosecutor Jack Smith, indicating that an indictment is likely of the former President on charges connected with his effort to overturn the 2020 election and remain in power: Finally. This, in the end, is the heart of the matter, a long-delayed reckoning with an offense against the constitutional system so great that it is without historic precedent—no President before Trump ever did such a thing.
Trump received the target letter on Sunday, and revealed it in one of his trademark hysterical social-media posts on Tuesday: “HORRIFYING NEWS!” Over the next couple of days, there were still more legal setbacks. In Florida, a Trump-appointed federal judge overseeing Smith’s other criminal case against the former President—for illegally holding on to top-secret documents—appeared deeply skeptical of Trump’s argument that she should delay a trial indefinitely since he is running for President. In Georgia, the state’s Supreme Court ruled against Trump’s motion to block the Fulton County district attorney, Fani T. Willis, from prosecuting him for his efforts to pressure officials to overturn his 2020 defeat in the state; criminal charges could result in the coming weeks. In New York, meanwhile, a judge said that Trump could not switch the venue of his Manhattan criminal trial for allegedly paying hush money to silence a former porn star with whom he had an affair. Trump is also facing two more civil lawsuits in New York, both of which could go to trial next year. America’s new political reality, in short, is: Donald Trump, Full-Time Defendant.
And yet Republicans remain in such thrall to their Orange Jesus—the honorific that Party apostate Liz Cheney so memorably quoted one of his acolytes calling him during last summer’s January 6th hearings—that, with each new legal woe, his prospects of winning the 2024 G.O.P. nomination keep going up. Few if any of these cases are likely to be fully resolved before the start of next year’s Republican primaries. Trump’s campaign is now explicitly a race not just to retake the Oval Office but to save himself from criminal conviction. This convergence of campaign and courtroom is, as the former Republican National Committee counsel Benjamin Ginsberg said this week, “a toxic mix unprecedented in the American experiment.” Something’s gotta give.
The apparently impending Smith indictment is not like all the other cases. In theory, it will force the question that has cursed the country since the evening of November 3, 2020, when Trump chose to claim victory in an election he had lost: What to do about a President who will do anything to stay in power, even unleash a violent mob of his supporters on the U.S. Capitol? Isn’t that illegal? How can it not be?
For two and a half years, the failure to answer Trump’s brazen acts with a decisive rebuke has only empowered the former President, enabling him to regain political strength within his party and force its nominal leaders to once again acknowledge his hold over their voters. Consider Mitch McConnell, who is the closest thing the current G.O.P. leadership has to an avowed enemy of the ex-President. Minutes after Trump was acquitted by the Senate in his second impeachment trial, he gave a blistering speech about the ex-President’s culpability in the events of January 6th. McConnell had not voted for conviction but, he insisted, only because of his objection to the process of impeaching a President who was no longer in office. “There is no question that President Trump is practically and morally responsible for provoking the events of that day,” McConnell said. “The people who stormed this building believed they were acting on the wishes and instructions of their President. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated President kept shouting into the largest megaphone on planet Earth.” The Senate Republican leader all but called for the Justice Department to do what his Senate would not. “President Trump is still liable for everything he did while he was in office,” McConnell said. “Didn’t get away with anything. Yet.”
But this week, when liability at last seemed imminent, McConnell said nothing at all. “I’m not going to comment on the various candidates for the Presidency,” he lamely told reporters. In the House, Speaker Kevin McCarthy was even worse. In 2021, he had directly blamed Trump for the attack on the Capitol. “Nobody can defend that, and nobody should defend it,” he said. This week, though, he attacked the Justice Department for indicting Trump in a case that has not been filed yet. It was, he said, an effort to “weaponize government to go after their No. 1 opponent.” According to Politico, the Speaker promised Trump that he would hold a House vote to “expunge” the two House impeachments against him—never mind that no one even knows whether such a thing is constitutionally possible. “I don’t see how he could be found criminally responsible,” McCarthy said. “What criminal activity did he do? He told people to be peaceful.”
Republicans used to revel every four years in their self-proclaimed status as the party of “law and order.” Now they follow Trump into attacks on federal prosecutors, on the Justice Department, on the F.B.I. It’s anyone’s guess how far down this road McCarthy may be willing to go, as the former President combines his legal defense with a political campaign of vengeance, retribution, and personal survival. It was surreal to see pictures of the Speaker as Joe Biden’s guest at the annual White House congressional picnic this week, grinning and chomping on an ice-cream bar, even as he seemed all too willing to light the place on fire if that’s what his restive pro-Trump majority were to demand.
The prospect of Trump returning to the White House is an existential one for American democracy, a political test from which there is no escaping. If this wasn’t clear before, it must be now. A reëlected Trump would be a President subject to no constraints at all—having twice dodged congressional impeachment, and either beaten back the Justice Department and the courts or delayed so long that he could seek to use his regained executive powers to nullify the cases against him. Trump, in his ever-more-apocalyptic rhetoric surrounding his effort to retake the White House, has taken to calling his 2024 race “the final battle.” I have increasingly come to believe that he is correct.
Given the stakes, there’s much to anticipate about what Smith’s latest case against Trump might look like. According to the Times, his target letter indicated that Trump could be prosecuted under three criminal statutes: conspiracy to defraud the government, obstruction of an official proceeding, and even a law enacted after the Civil War to give federal agents a means of prosecuting Southern white supremacists, including Ku Klux Klan members who resorted to terrorism to prevent newly freed Blacks from voting.
But knowing what he will be charged with does not mean there is nothing left to learn about this unprecedented plot against America. For that, we must wait for the indictment: Will there be new details showing that it was the President himself who orchestrated the conspiracy to overturn election results in battleground states? New examples of Trump pressuring officials or government agencies? Damning evidence in his own words that he knew he had lost the election and proceeded anyway? Will there be a turncoat—Mark Meadows, perhaps?—to provide revelations from inside Trump’s fevered quest to stay in office after the voters had spoken? I hope and expect so after more than two and a half years of waiting. And yet somehow those questions still seem subordinate to the one that the indictment will not and cannot answer: Did it come too late? ♦