By Marc Elias January 16, 2025
You hear the complaint all the time: When fighting Trump, our side too often brings a knife to a gun fight.
Usually, I bristle at the criticism. I know that in my own work, my team and I fight hard in court to protect voting rights. I take a perverse pride in Steven Bannon berating Republican lawyers for not being as tough as me. I will never forget Lou Dobbs yelling at Stephen Miller to have the GOP pay me $500 million to stop beating them in court.
I see others fighting against Trump and winning as well. I don’t know how anyone can reflect on how Nancy Pelosi handled Trump during his first term and not be impressed. Democratic governors like J.B. Pritzker (Illinois), Gavin Newsom (Calif.) and Josh Shapiro (Penn.) stand up to him daily. If I were a betting man, I would put my money on Hakeem Jeffries (D-N.Y.) and Chuck Schumer (D-N.Y.) over Mike Johnson (R-La.) and John Thune (R-S.D.) in the legislative fights ahead.
The two places where I agree with criticism, however, are around the subtle rehabilitation of Trump as something other than an election denier and the judicial system’s total failure to hold Trump responsible in his criminal cases.
For example, this year many Trump critics used Jan. 6 to praise Democrats for being well behaved rather than focus on the violent insurrection of four years ago. Jan. 6 should be reserved for remembering what Trump and the angry mob he inspired did to attack this country’s peaceful transfer of power, period.
The shift was also in full display in a Washington Post headline about the release of Jack Smith’s report: Appeals court allows release of Smith’s report on Trump’s election-reversal effort. To be clear the “election-reversal effort” involved frivolous litigation, fraudulent electors, pressuring state officials and a violent insurrection to block the peaceful transfer of power. It is possible that this is more Bezos-inspired obeyance in advance. More likely, it is just journalistic drift towards normalizing the obscene.
Meanwhile, North Carolina Republicans continue to fight against certification of a free and fair election in a state Supreme Court race. That too was largely treated as just another partisan election dispute rather than the most serious misuse of the courts to overturn a free and fair election since Trump’s failed efforts in 2020.
As for Trump’s criminal cases, its conclusion proved just how incapable our justice system is to dispense equal justice under the law. First, the judge overseeing Trump’s New York criminal case set a sentencing date but made clear he would not impose any period of incarceration. He also gave him the right to appear via video. All this despite Trump’s 34 felony convictions and having been found in contempt of prior court rulings.
On appeal, the U.S. Supreme Court ruled 5-4 that the sentencing could proceed, noting that it would not take much time, Trump would not face jail time and thus the sentencing will be a “relatively insubstantial” burden on Trump.
The actual sentencing went according to that plan. Trump’s lawyers said Trump was innocent and Trump prattled on about how unfair all of this was. Despite the defendant showing defiance rather than contrition, the judge imposed no penalty. Most shockingly, the prosecutor did not even seek one.
Next time someone tells you that no man is above the law, ask them to compare this treatment to how those accused of petty crimes are treated by our courts. As JB Poersch commented succinctly after the hearing:
It’s hard to celebrate Trump found as a felon without a sentence. It’s not how the rule of law should work.
Speaking of special treatment, not only did Jack Smith preemptively dismiss the charges against Trump, but he also apparently gave his lawyers the courtesy — yes, courtesy — of reviewing at least portions of his final report prior to release.
If this seems weird, it is. When I searched for a legal reason for why Trump’s lawyers were permitted to review the report in advance, I found none. When I asked other lawyers, they all agreed it was a DOJ “norm.” I can assure you it is not a norm followed by John Durham when he smeared Hillary Clinton and those associated with her 2016 campaign.
People need to learn a lesson: Never bring norms to a Trump fight.
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