“Injustice” largely ignores these cases. His drama is tightly confined to the Justice Department—which is instructive but sometimes suffocating. Bragg's accusation takes up little more than a page, with Leonnig and Davis calling it “tasteless.” Clearly, January 6th is about more than a reckoning with 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 attorney” who took on a job that would have been better left in federal hands. There's something there, considering the chaos that the Willis case has become: uncontrollably large RICO an indictment with nineteen defendants and an ill-advised relationship between Willis and a colleague. (She was eventually removed from the case.) Still, Democrats lauded both Bragg and Willis. The New York trial provided the vehicle for many of the cinematic courtroom scenes that Trump's opponents craved, as well as thirty-four felony convictions, numbers Harris frequently mentioned during her campaign.
Bragg, however, applied a legal theory generously described as creative to turn misdemeanors into felonies, and the judge in the case, Juan Merchan, issued several rulings that left him vulnerable to an appeal (which is pending). The huge amount James won has already been overturned by an appeals court, although some non-financial penalties remain. Perhaps Smith's ghost trials would offer something different; Perhaps if Trump hadn't committed so many crimes, he wouldn't have been indicted so often. But if the complaint is that there weren't enough Trump trials, then one must reckon with both the mistrials that actually happened and the idealized ones that didn't. It is also necessary to evaluate their cumulative effect, which, ironically, included undermining the Democrats' warnings about threats to democracy – from the Republican point of view, their candidate was kept in one courtroom after another and thus excluded from the campaign. Leonnig and Davis note that Trump has “successfully turned dozens of criminal charges” into “his most powerful argument for his re-election.” What they don't do is reconcile this sad truth with their vision of how the Justice Department should have operated.
The lesson of Trump's experience may be that not all terrible things are best or wisest dealt with through criminal law. In fact, there were other possible approaches, although they present their own “what ifs”. One of them was Trump's Senate trial in February 2021, following his second impeachment on a charge of inciting insurrection. There were fifty-seven guilty votes, including seven from Republicans, but not enough for the two-thirds majority needed for conviction. Of all the counterfactuals one can think of, the impeachment trial offers the clearest path yet to be taken. Impeachment is what the Founders considered the primary means of dealing with political crimes, and conviction would disqualify Trump from running again; there are no criminal offenses. In truth, it was Senate Majority Leader Mitch McConnell who lost his cool far more than Merrick Garland.
And then there was the House Select Committee on the January 6 attack. As Leonnig and Davis tell it, the House investigation was both a rebuke to the Justice Department, showing how far behind prosecutors had fallen, and a setback because the committee was determined to keep its findings secret ahead of high-profile televised hearings and would not share what it learned. “Congress is not part of the Justice Department,” Liz Cheney, the committee's vice chairwoman, told her colleagues. Seeking accountability through congressional hearings was certainly a laudable choice. However, the committee appeared biased because the only Republicans on it had already broken with Trump and their party. (When then-Speaker Nancy Pelosi expelled ultra-Trumpists like Jim Jordan, the GOP leadership left.) As a result, the hearings, while highly disciplined, lacked the confrontational back-and-forth that might have attracted voters. The hearings did provide a valuable account of the events of that day – if historians in the years to come are willing to use it.
However, Judge Chutkan's trial was ultimately pushed back from its original March date not because of other charges, but because of a motion Trump filed in October 2023 that claimed criminal immunity for his official actions as president. At first, Chutkan simply dismissed the lawsuit, and the D.C. Court of Appeals sided with her. But the appellate ruling, which treated the lack of such immunity as almost axiomatic, reportedly angered John Roberts, the chief justice of the Supreme Court. Roberts said the appellate ruling would make it too easy to prosecute any president. The unanswered question is how conservative judges have been affected by the constant swirl of cases and lawsuits. Are they part of the backlash? According to Leonnig and Davis, when people on Smith's team watched the DOJ appellate team's 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 appellate court levels” that they didn't realize how different a Supreme Court hearing might be. Even prosecutors and judges can find themselves in an echo chamber.
The immunity decision was 6-3 when it came down on July 1, with the Court's liberals vehemently dissenting. It granted former presidents immunity for official acts so broad that it was difficult to say what it was. Andthere may be an official act. This even called into question the verdict to pay money for the cover-up. (This month, an appeals court ordered a federal judge to review the issue.) The justices then sent Smith's Jan. 6 indictment back to Chutkan for further proceedings over which parts, if any, can be preserved. According to Leonnig and Davis, Smith told his team it was an opportunity to “show what kind of lawyers we are.” But the process of figuring out what is an official act and what is not would almost certainly have taken a year or more and would have resulted in a very different indictment.
