Jack Smith Gives Up
The January 6 crime paid off for Trump.
By David
Frum
January 14, 2025, 1
PM ET
Early this morning, the Department of Justice released the report of Special Counsel Jack
Smith on his investigation of Donald Trump’s attempt to overturn the result of
the 2020 presidential election. The saga of the U.S. criminal-justice system’s
effort to hold the coup instigator accountable is thus closed. No prosecution
will take place. Compared with the present outcome, it would have been better
if President Joe Biden had pardoned Trump for the January 6 coup attempt.
A pardon would at least have upheld the theory that violent
election overthrows are wrong and illegal. A pardon would have said: The
U.S. government can hold violent actors to account. It just
chooses not to do so in this case.
Instead, the special counsel’s report delivers a confession
of the helplessness of the U.S. government. Smith asserts that 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 convict today, not the president-elect. But the law did not move
fast. Why not? Whose fault was that? Fingers will point, but finger-pointing
does not matter. What matters is the outcome 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”:
Our constitutional institutions, understandings, and practices have all
been transformed, over decades, away from the words on the paper into a new
arrangement—a new regime if you will—that pays only lip service to the old
Constitution.
That 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 by the
executive branch. The post-constitutional moment that Trump supporters once
condemned has now become their opportunity. They have transgressed the most
fundamental rule of a constitutional regime, the prohibition against political
violence—and instead of suffering consequences, they have survived, profited,
and returned to power.
If anything, the transgression has made them more powerful
than they otherwise would have been. Bob Woodward gives an account in his 2018
book, Fear, that Gary Cohn, Trump’s chief White House economic
adviser, thwarted Trump’s intent to withdraw from NAFTA and the U.S.–South
Korea trade agreement by snatching the notification letters off the president’s
desk. The story suggests something important about the difficulty Trump had
imposing his will during his first term. But for his upcoming second term,
Trump has made defending his actions in 2021 a test of loyalty. Last
month, The New YorkTimes interviewed people involved in recruiting
for senior roles in the Trump Defense Department or intelligence agencies;
several of them had been quizzed about whether Joe Biden won the 2020 election
and whether Trump did anything wrong in his challenge to the election on
January 6. The clear implication was that to answer anything but No and
No would have been disqualifying. There will be no more Gary Cohns,
only J. D. Vances who will deny the previous election and defend
Trump’s actions to overturn it.
That is what a
post-constitutional moment looks like.
Before Trump, American law was quite hazy on the legal
immunity of the president. In 1982, the U.S. 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 ones.
For nearly 250 years after the adoption of the U.S.
Constitution, the question of the president’s rights under criminal law did not
arise. Trump’s proclivity for wrongdoing forced the question on the country:
Was a president of the United States subject to criminal law or not? Last year,
the Supreme Court delivered a mess of an answer, the main
holding of which seemed to be: Here’s a complex, multipart, and highly
subjective set of questions to answer first. Please re-litigate each and every
one of them while we wait to see whether Trump wins or loses the 2024 election.
Now comes the Smith report with its simpler answer: If a
former president wins reelection, he has immunity for even the worst possible
crimes committed during his first term in office.
The incentives contained in this outcome are clear, if
perverse. And they are deeply sinister to the future of democracy in the United
States.
