Less than two months from now, President-elect Donald Trump will become the first convicted felon to be sworn in as president of the United States.
This historic and shameful first is chiefly the fault of President Joe Biden’s administration and Attorney General Merrick Garland’s Department of Justice. Biden cared more about the appearance of having an independent DOJ untainted by politics than he did about holding an unrepentant criminal ex-president accountable. Garland cared more about not being labeled a partisan attorney general pursuing a politically motivated investigation (something Republicans were always bound to do regardless of Garland) than he did about doing the most basic and fundamental job of enforcing federal laws.
Trump could have — and should have — been prevented from ever getting anywhere near the levers of power again. 57 of 100 US senators agreed he should be convicted in his second impeachment trial for attempting to overturn the 2020 election after inciting a violent mob to lay siege to the US Capitol. Federal investigators found classified documents stored in a shower at Mar-a-Lago. A Manhattan jury approved by both prosecutors and defense attorneys found him guilty on all 34 felony counts of falsifying business records after less than two days of deliberations. But Judge Juan Merchan has indefinitely postponed Trump’s sentencing date, and special counsel Jack Smith has dropped the two federal cases against Trump. His Georgia case will likely not go to trial at least until he leaves the White House in January of 2029, when he will be 82 years old.
Ultimately, Biden’s campaign (and later Vice President Kamala Harris’ campaign) undermined the best argument against Trump — that he was a criminal whose own felony convictions made him ineligible to vote in multiple states, own a firearm, or even hold a minimum wage retail job — due to their own administration’s lackadaisical attitude to his crimes. And Democrats continue to undermine their own rhetoric about Trump being a dangerous threat to democracy by continuing to choose appeasement over resistance.
If Trump was truly so dangerous, why didn’t Democrats jail him?
Other democracies around the world don’t have the same hesitance toward prosecuting former presidents as the United States does. Axios reported earlier this year that 78 countries, including stable democracies like France, Israel, and South Korea, have all charged former heads of state with crimes.
Latin America in particular has a penchant for holding criminal heads of state accountable in court. According to Axios, all but one president of Peru who served between 1985 and 2018 has been arrested or charged with crimes. Jeanine Áñez, who was the interim president of Bolivia between 2019 and 2020, was sentenced to 10 years in prison for her role in the coup that ousted beloved former Bolivian President Evo Morales. And former Argentinian vice president and president Cristina Fernández de Kirchner was convicted of fraud after a 2022 trial, though she remained in office until just last year.
As the Guardian reported this week, former Brazilian President Jair Bolsonaro was recently charged with organizing a coup attempt after losing his 2022 reelection bid. Just as Trump supporters did after his loss in 2020, Bolsonaro supporters ransacked government buildings in the nation’s capital when he lost. And like his counterpart in the US, Bolsonaro referenced social media-driven conspiracy theories about nonexistent election fraud rather than admit defeat in his reelection bid.
Merrick Garland, however, exhibited none of the urgency of his international counterparts despite overwhelming evidence implicating Trump. Garland was sworn in as attorney general in March of 2021. But special counsel Jack Smith wasn’t appointed as special counsel to oversee the DOJ’s two ongoing investigations into both 2020 election interference and alleged mishandling of classified documents until November of 2022. According to a 2023 Washington Post report, Garland’s election interference investigation “consisted of just four prosecutors working with agents with the US Postal Inspection Service and the National Archives and Records Administration.”
The Post further reported that as the Garland DOJ prosecuted low-level participants in the January 6 riot, higher-ups within the agency routinely overlooked the role of major players like Trump, even as evidence emerged that he and his deputies helped organize a plot to overturn the election by submitting slates of so-called “fake electors” from battleground states Biden narrowly won. The FBI didn’t even start investigating the fake elector plot until roughly 15 months after the January 6 insurrection. One unnamed DOJ source complained: “You can’t even use the T word” in the office, referring to the former president.
According to the Post, US District Judge David O. Carter — who was appointed by former President Bill Clinton — was equally alarmed by both the overwhelming evidence against Trump and his lieutenants and at the lack of urgency exhibited by federal prosecutors. After reviewing emails from now-disbarred Trump attorney John Eastman laying out the plot to overturn the election in Congress, Carter called it “a coup in search of a legal theory” in a 2022 ruling. He added that “the illegality of the plan was obvious.”
“More than a year after the attack on our Capitol, the public is still searching for accountability,” Carter wrote. “If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”
As the Nation’s Chris Lehmann wrote in 2023, Garland’s fears about politics coloring his investigation are even more difficult to understand given his own personal experience as former President Barack Obama’s unsuccessful third Supreme Court appointment. Even though Garland had impeccable credentials as the chief justice of the D.C. Circuit Court of Appeals (widely regarded as the most powerful judicial body in the US outside of the Supreme Court), his confirmation was nonetheless blocked by Senate Republicans for the better part of 2016 for purely political purposes.
Then-Senate Majority Leader Mitch McConnell (R-Kentucky) cynically argued that confirming a Supreme Court justice in an election year was inappropriate, and that voters should have a say in what party gets to fill the seat after the first Tuesday in November. Of course, McConnell blatantly disregarded this rule after the late Justice Ruth Bader Ginsburg died in September of 2020, and rushed Trump’s third appointment through the Senate in the final weeks before the 2020 election. McConnell later gloated about stealing Obama’s third Supreme Court appointment, calling it the “most consequential” decision of his entire political career.
Garland apparently learned zero lessons from his failed Supreme Court nomination, just as he has learned nothing about the irrelevance of outdated liberal norms in the face of direct threats to institutions like the rule of law. It’s plainly obvious that had Garland’s DOJ acted with more urgency with regard to Trump, the former president may already be behind bars, and that the presidential transition would look very different than it does today.
Merrick Garland’s failure to apply the rule of law to Trump may have been what sunk both Biden and Harris’ efforts to keep the White House in Democratic hands. The argument that Trump was a fascist threat to democracy — as Harris said in an interview and a televised town hall — is immediately rendered meaningless when a voter hears it and asks: “If Trump is so dangerous, why didn’t you put him in jail?” The only real way to answer that question is to admit cowardice, fecklessness, and incompetence. And why would a voter choose that?
If Trump is such a threat, why are so many Democrats refusing to fight?
Garland’s failure to prioritize the rule of law over upholding norms is just the tip of the iceberg of the liberal establishment’s failure to respond appropriately to the threat posed by Trumpism. Even before Trump takes office, many in the legal world, the media industry, and federal regulatory agencies are already obeying in advance — something that authoritarianism scholar Timothy Snyder expressly warned against.
In a November op-ed for the New York Times, SCOTUSblog publisher Thomas Goldstein, who was a former advisor to ex-vice president Al Gore, called for the dismissal of the criminal cases against Trump. The core of his argument was that prosecutors should heed the will of the electorate, which he called “democracy’s ultimate verdict.” Goldstein further wrote that “the Constitution trusts the judgment of the American people to decide whether the cases against Mr. Trump, as he has argued, were political and calculated to stop him from being elected,” even though the Constitution says no such thing.
Golstein also argued that while the United States was founded on the principle that no man is above the law, “Trump is no ordinary man,” and should thus be exempted from having the rule of law applied to him as the incoming 47th president of the United States. Author Dave Itzkoff observed that “this is like something a character in Animal Farm would say, and every 6th grader in the classroom would understand why it’s wrong.”
Despite his obvious incorrect interpretation of the Constitution and blatant disregard of the anti-monarchy sentiment that drove the founders to establish a new government, Goldstein’s attitude appears to be the prevailing sentiment among the Washington elite. Since Trump’s election victory, there have been numerous examples of Democrats rolling over and offering no resistance to his stated plans to take a wrecking ball to democratic institutions.
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Gary Gensler, who leads the Securities and Exchange Commission, is stepping down in January of 2025 to allow Trump’s replacement to immediately take over. Gensler’s five-year term wasn’t due to expire until 2026, but rather than use his power to frustrate Trump’s attempts to deregulate Wall Street and cryptocurrency, Gensler is retreating.
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MSNBC hosts Joe Scarborough and Mika Brzezinksi both made a pilgrimage to Mar-a-Lago to personally meet with Trump out of fear of retribution. Scarborough highlighted the fact that Trump said he appreciated that the “Morning Joe” hosts wanted to have “open communication” with him, though the show has seen a roughly 30% decline in ratings since the meeting.
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After Trump announced that he was appointing attorney Brendan Carr to chair the Federal Communications Commission (FCC), current chair Jessica Rosenworcel issued a statement warmly welcoming him to the commission, saying she is “confident” that he is “familiar with the staff, the responsibilities of this new role, and the importance of continued US leadership in communications.” This comes despite Trump’s repeated threats to revoke the broadcast licenses of news outlets that criticize him, and Carr authoring the section of the far-right authoritarian Project 2025 playbook outlining its approach to the FCC.
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Senate Majority Leader Chuck Schumer (D-New York) announced a deal brokered with Republicans that he was giving up the fight to get four of Biden’s nominees for powerful federal appellate courts confirmed in exchange for Republicans allowing more district court nominees to be confirmed during the rest of Biden’s lame duck period. Schumer is caving even though Democrats have a majority in the Senate until the new Congress is sworn in on January 3, and conservative Sen. Joe Manchin (I-West Virginia) signaling that he is eager to help get as many of Biden’s nominees confirmed despite a previous promise that he wouldn’t back any judicial nominee that lacked Republican support.
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Sen. Chris Coons (D-Delaware) joined Fox News to praise the effort by billionaire businessmen Elon Musk and Vivek Ramaswamy to make catastrophic, draconian cuts to the federal workforce. Both Musk and Ramaswamy outlined their plans in a Wall Street Journal op-ed to focus on “regulatory rescissions” and “administrative reductions,” which will almost certainly mean an all-out assault on environmental, labor, consumer, and financial protections. Coons nonetheless called their endeavor “a constructive undertaking that ought to be embraced.”
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House Minority Leader Hakeem Jeffries (D-New York) said a week after the election that while he intends to still fight for Social Security, the Affordable Care Act, voting rights, and abortion rights, he will “work to find bipartisan common ground whenever and wherever possible” with the Republican majority. This came after he dismissed Trump’s most egregious Cabinet appointees like Director of National Intelligence-designate Tulsi Gabbard and conspiracy theorist Robert F. Kennedy Jr., who Trump tapped to lead the Department of Health and Human Services, as a “distraction” despite their ability to potentially and significantly destabilize the United States.
And of course, Biden’s friendly meeting with Trump at the White House is arguably the most jarring example of Democrats failing to understand the urgency of the moment. It’s understandable that Biden wants to distinguish himself from his predecessor and successor by ushering in a peaceful transfer of power. But his all-smiles photo-op alongside Trump at the White House is nonetheless confusing to voters who Biden told for months had to elect him over Trump, warning that he “wants to be a dictator” and “wipe out the civil servants.” This is in contrast to Trump, who — along with his wife, Melania – fired the White House’s chief usher hours before leaving office to make sure Biden would be temporarily locked out of the presidential residence after being sworn in.
In an early 2021 tweet, journalist Sarah Kendzior ominously predicted that Biden’s presidency would merely be a “brief interlude between aspiring autocracy and entrenched autocracy” if he failed to hold Trump and other administration officials for crimes and “tackle the structural issues that made the US vulnerable to mafia state rule.” Biden and his administration’s deference to meaningless norms over accountability may prove to have been not only the undoing of his political career, but of American institutions altogether.
Carl Gibson is a journalist whose work has been published in CNN, USA TODAY, the Guardian, the Washington Post, the Houston Chronicle, the Louisville Courier-Journal, Barron’s, Business Insider, the Independent, and NPR, among others. Follow him on Bluesky @crgibs.bsky.social.
