The American legal system is on the verge of achieving a remarkable milestone in history. Amidst intense pressure, it has responded to the American insurrection by delivering justice to the participants and establishing legal precedents that will act as strong deterrents against future rebellions. At a time when many American institutions have failed, the success of our legal system in tackling a grave crisis should instill genuine hope.
As I pen this newsletter, the news of the prosecution of 16 Republicans by the Michigan attorney general for falsely posing as electors qualified to vote for Donald Trump in the Electoral College after the 2020 election has just been announced. On the same day, former President Trump revealed on Truth Social that he has received a target letter from Jack Smith, the special counsel appointed by Attorney General Merrick Garland to investigate Trump’s attempts to overturn the election. This target letter is a clear indication that Trump may soon face indictment by the grand jury investigating the January 6, 2021, Capitol attack, quite possibly in the near future.
One day before this flurry of news, the Georgia Supreme Court rejected a desperate attempt by Trump to disqualify Fulton County district attorney Fani Willis from prosecuting him and to suppress a special grand jury report on election misconduct in 2020. Trump’s petition was filed on July 13 and rejected a mere four days later. As a result, Willis can continue her work, and it is expected that she will begin issuing indictments, potentially including an indictment against Trump himself, in August or even earlier.
Whether or not another indictment against Trump is imminent, the legal response to the events of January 6 will carry on. However, to truly understand our current situation, it is important to trace our journey thus far. If we rewind back to the late evening of January 6, 2021, it became apparent that America’s long-standing tradition of a peaceful transfer of power had been shattered by a demagogue and his mob. What made matters worse was the absence of a clear path to legal accountability.
Prosecuting acts of violence against the police or acts of vandalism in the Capitol was relatively straightforward, especially given the abundance of video evidence. However, simply prosecuting Trump’s henchmen was insufficient in addressing the extensive misconduct associated with the MAGA movement. What about those who played a role in planning and facilitating the insurrection? What about the failed candidate himself, Donald Trump, who set this entire chain of events into motion?
The legal challenges were numerous. The narrative of a stolen election was propagated through an astonishing amount of defamation, but defamation cases are notoriously difficult to win in a country that highly values freedom of speech. Trump’s legal campaign was led by unethical lawyers who raised frivolous arguments, yet disciplining attorneys, especially across multiple jurisdictions, poses significant challenges.
The list goes on. Trump’s team attempted to exploit ambiguities in the Electoral Count Act, a poorly written 19th-century statute that may be one of the most deficient pieces of legislation in the federal code. Additionally, they advanced a constitutional argument known as the independent state legislature doctrine, which would grant state legislatures the power to dictate or manipulate the outcomes of congressional and presidential elections within their states.
There’s more. When we witnessed the insurrectionists storming the Capitol, we were witnessing the culmination of a seditious conspiracy, yet prosecuting individuals for seditious conspiracy is rare and difficult. And finally, this sorry and deadly affair was instigated by an American president, and never before had an American president been indicted, let alone for his role in unlawfully attempting to overturn an American election.
Now, let’s examine the response. It’s easy to become discouraged when looking at Trump’s enduring popularity among GOP voters and the unapologetic support he receives from parts of the right-wing media. Does anything truly make a difference in the battle against Trump’s lawlessness and lies? The answer is a resounding yes, and the evidence is impressive. Let’s review it.
The pro-Trump media ecosystem that echoed and amplified his election lies has faced consequences. Fox News agreed to an astounding $787 million defamation settlement with Dominion Voting Systems, and multiple defamation cases are ongoing against various right-wing media outlets.
Trump’s lawyers and his associates have faced consequences. Last month, the U.S. Court of Appeals for the Sixth Circuit upheld a substantial portion of a sanctions award against Sidney Powell and a group of lawyers allied with Trump. Rudy Giuliani’s law license in New York was temporarily suspended in 2021, and a Washington, D.C., bar panel recently recommended his disbarment. Jenna Ellis, one of Giuliani’s partners in promoting dangerous falsehoods and frivolous legal arguments, publicly admitted to multiple misrepresentations and received a censure from the Colorado Bar Association. John Eastman, the former dean of Chapman University’s law school who authored a notorious legal memo suggesting that Mike Pence could overturn the election, is facing his own bar trial in California.
Congress has responded to the January 6 crisis by passing bipartisan Electoral Count Act reforms, making it significantly more challenging to repeat the type of congressional attempt to overturn an election.
The Supreme Court has responded by deciding Moore v. Harper, which effectively dismantled the independent state legislature doctrine and ensured that partisan state legislatures can still be reviewed by the courts.
The criminal justice system has responded by securing hundreds of criminal convictions against January 6 rioters, including convictions for seditious conspiracy for multiple members of the Oath Keepers and the Proud Boys. The criminal justice system is continuing to make progress up the chain of command, with Trump himself appearing to be the ultimate target.
In the span of approximately 30 months, which is incredibly fast in legal terms, the American legal system has established the necessary case law to combat and deter American insurrection. Bar associations and courts are setting crucial precedents, and these precedents are holding strong against appeals and legal challenges.
Have you ever wondered why the 2022 election proceeded relatively smoothly and without major incidents, even though the Republicans fielded several candidates who embraced conspiracy theories? Have you wondered why right-wing media seemed relatively subdued following a series of significant losses for the GOP, especially compared to the hysteria of 2020? Yes, it undoubtedly matters that Trump was not a candidate, but it also matters that the most lawless members of the right-wing have faced prosecution, lawsuits, and sanctions.
The consequences for January 6 and the Stop the Steal movement are not limited to the legal realm. The midterm elections dealt a significant blow to the extreme MAGA right. According to an NBC News report, candidates who denied the election results “overwhelmingly lost” in swing states. It is difficult not to conclude that the relentless legal efforts have also yielded political outcomes.
It is important to note that this accountability has not been exclusively driven by the left. Although the Biden administration and the Justice Department under Merrick Garland deserve immense credit for their resolute response to Trump’s insurrection that struck the right balance, multiple Republicans joined forces with Democrats to pass reforms to the Electoral Count Act. Conservative and liberal judges alike rejected Trump’s election challenges, including some who were appointed by Trump himself. Republican governors and other elected officials in Arizona and Georgia stood firm in upholding the legitimacy of Joe Biden’s election victory despite immense pressure from within their own party.
American legal institutions have proven themselves capable of withstanding the test posed by January 6 so far. However, the tests are far from over. Trump is currently attempting to significantly delay his federal trial in the Mar-a-Lago case, and if he faces another federal indictment soon, he will almost certainly seek to delay that trial as well. Trump is eager to avoid facing a jury, and by prolonging the trials, he could potentially run for president without any felony convictions. What if he actually wins?
To put it simply, the power lies with the American people. If they elect Trump despite his indictments, they will empower him to put an end to his federal criminal prosecutions and render state prosecutions practically impossible. They will enable him to pardon his allies. The American voters will effectively breach the legal firewall that safeguards our democracy against insurrection and rebellion.
We cannot demand too much from any legal system. Ultimately, a code of laws cannot fully replace morality…
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