If the Legal Campaigns Against Donald Trump Had Ended Differently

“Injustice” largely ignores those cases. Its drama is tightly enclosed within the D.O.J.—illuminatingly but also, at times, suffocatingly so. Bragg’s prosecution gets a little more than a page, in which Leonnig and Davis dismiss it as “tawdry.” Obviously, January 6th is a bigger deal than paying off a porn star. But Willis, whose Georgia case covered much of the same ground as Smith’s, is mentioned only in passing in “Injustice,” as “a county prosecutor” who took on a job that would have been better kept in federal hands. There’s something to that, given the shambles that Willis’s case became: an unmanageably large RICO prosecution with nineteen defendants and an ill-advised relationship between Willis and a colleague. (She was eventually removed from the case.) Still, Democrats lionized both Bragg and Willis. The New York trial was the vehicle for delivering many of the cinematic courtroom scenes that Trump’s opponents longed for, along with its thirty-four felony convictions—a number that Harris mentioned frequently during her campaign.

Bragg, though, deployed a legal theory generously described as creative to spin misdemeanors into felonies, and the judge in the case, Juan Merchan, made some rulings that left it vulnerable on an appeal (which is pending).The enormous award that James won has already been thrown out by an appellate court, though some nonfinancial penalties remain. Maybe the phantom Smith trials would have offered something different; maybe if Trump didn’t commit so many crimes he wouldn’t be indicted so often. But, if the complaint is that there were not enough Trump trials, one has to reckon with the flawed trials that did happen as much as with the idealized ones that didn’t. One also needs to assess their cumulative effect, which, ironically, included undermining the Democrats’ warnings about threats to democracy—as Republicans saw it, their candidate was being kept in one courtroom after another, and thus off the campaign trail. Leonnig and Davis observe that Trump “successfully converted dozens of criminal charges” into “his most powerful argument for his reelection.” What they don’t do is reconcile that sad truth with their vision of how the D.O.J. ought to have acted.

A lesson of the Trump experience may be that not every awful thing is best, or most wisely, reckoned with using the tool of criminal law. There were, in fact, other possible approaches, though they present their own what-ifs. One was Trump’s Senate trial, in February, 2021, after his second impeachment, on a charge of incitement to insurrection. There were fifty-seven guilty votes, including seven from Republicans, but not enough for the two-thirds majority needed to convict. Of all the counterfactuals one could come up with, the impeachment trial offers the clearest road not taken. Impeachment is what the Founders envisioned as the foremost means of addressing political crimes, and conviction would have disqualified Trump from running again; felonies do not. In truth, it was the Senate Majority Leader Mitch McConnell, far more than Merrick Garland, who lost his nerve.

And then there was the House select committee on the January 6th attack. As Leonnig and Davis tell it, the House investigation was both a rebuke of the D.O.J., showing how far behind the prosecutors were, and an obstacle, because the committee was determined to keep its findings under wraps ahead of its splashy, televised hearings, and wouldn’t share what it had learned. “Congress is not D.O.J.’s staff,” Liz Cheney, the committee’s vice-chair, told her associates. Pursuing accountability through congressional hearings was certainly a laudable choice. The committee came across as partisan, however, because the only Republicans on it had already broken with Trump and their party. (When then Speaker Nancy Pelosi excluded ultra-Trumpists such as Jim Jordan, the G.O.P. leadership walked away.) As a result, the hearings, though highly disciplined, lacked the confrontational back-and-forth that might have drawn voters in. The hearings did produce a valuable record of the events of that day—if historians, in years to come, are willing to make use of it.

What ultimately bumped Judge Chutkan’s trial from its original March date, though, wasn’t any of the other prosecutions but a motion that Trump filed in October, 2023, which made a claim of criminal immunity for his official acts as President. At first, Chutkan simply denied the claim, and the Court of Appeals for the D.C. Circuit backed her up. But the appellate decision, which treated the absence of such immunity as almost axiomatic, reportedly angered John Roberts, the Chief Justice of the Supreme Court. In Roberts’s view, the appellate ruling would make it too easy to prosecute any President. An unanswerable question is how the conservative Justices were influenced by the continual swirl of cases and suits. Did they become part of the backlash? According to Leonnig and Davis, when people on Smith’s team watched the D.O.J. appellate team’s mock oral arguments in the immunity case, they were genuinely stunned by how tough the practice sessions were: they “had won so convincingly at the district and appeals court levels” that they hadn’t realized how different their Supreme Court reception might be. Even prosecutors and judges can find themselves in echo chambers.

The immunity decision, when it came, on July 1st, was 6–3, with the Court’s liberals furiously dissenting. It gave former Presidents a grant of immunity for official acts so broad that it made it hard to say what an unofficial act might be. It put even the hush-money conviction into doubt. (This month, an appellate court told a federal judge to examine that question.) The Justices then sent Smith’s January 6th indictment back to Chutkan for more litigation over which parts of it, if any, could survive. According to Leonnig and Davis, Smith told his team that this was an opportunity to “show what kind of lawyers we are.” But the process of working out what was and what wasn’t an official act would almost certainly have taken a year or more, and produced a very different indictment.