Early this morning, the Department of Justice released Special Counsel Jack Smith's report on Donald Trump's attempts to overturn the results of the 2020 presidential election. This ends the saga of the U.S. criminal justice system holding coup instigators accountable. No prosecution will be pursued. Compared to the current outcome, the situation would be better if President Joe Biden pardoned Trump for his January 6 coup attempt.

A pardon would at least bolster the theory that violent overturning of the election was wrong and illegal. Absolution will say: us government able Hold perpetrators of violence accountable. In this case it just chooses not to do so.

Instead, the special counsel's report acknowledged the U.S. government's helplessness. Smith claimed there was enough evidence to convict Trump of a serious crime and then declared the constitutional system impotent: The criminal is now the president-elect; therefore, his crimes cannot be punished.

The report suggests that had the law moved faster, Trump would have been convicted today rather than elected president. But the law is not moving quickly. why not? Whose fault is that? Fingers will point, but it doesn't matter where they point. What matters is the results and the information.

Trump vowed to uphold the Constitution in January 2017. He violated that oath in January 2021. Now, in January 2025, he will take the oath again. The ritual continues. Its meaning has been lost.

In 2022, a prominent conservative intellectual declared that the United States had entered a "post-Constitutional moment":

That conservative is Russell Vought, one of the co-authors of the Heritage Foundation’s 2025 policy plan and now President-elect Trump’s choice to serve as director of the Office of Management and Budget, responsible for controlling and coordinating the administration All actions of the department. The post-Constitutional moment that Trump supporters once decried has now become their opportunity. They violated the most basic rule of the constitutional system, which prohibits political violence, but instead of suffering the consequences, they survived, profited, and returned to power.

If anything, this transgression made them stronger than they otherwise would have been. Bob Woodward puts it this way in his 2018 book: FearTrump's top White House economic adviser, Gary Cohn, snatched the notification letter from the president's desk, thwarting Trump's intention to withdraw from the North American Free Trade Agreement and the U.S.-South Korea trade agreement. The story illustrates the difficulty Trump faced in enforcing his wishes during his first term. But heading into his second term, Trump views defending his 2021 actions as a test of loyalty. last month, new york times Interviews with people involved in Trump's recruitment for senior positions in the Defense Department or intelligence agencies; some of them were asked whether Joe Biden won the 2020 election and whether Trump had done anything to challenge the election on January 6 Something is wrong. The obvious implication is that answer any question except: No and No will be disqualified. There will be no more Gary Cohns, just J.D. Vance denying the previous election and defending Trump’s actions to overturn the election.

That This is what the post-constitutional moment looked like.

Before Trump, U.S. law gave the president legal immunity that was rather vague. In 1982, the U.S. Supreme Court ruled that the president could not be prosecuted for his official actions. In 1997, the court ruled that the president could be sued for personal conduct unrelated to his office. Both rulings apply only to civil cases, not criminal cases.

In the nearly 250 years since the adoption of the U.S. Constitution, the issue of presidential rights under criminal law has not arisen. Trump’s penchant for wrongdoing has forced the nation to confront the question: Is the president of the United States subject to criminal law? Last year, the Supreme Court gave a confusing response, the gist of which seemed to be: It starts with answering a complex, multi-part and highly subjective set of questions. Re-litigate each of them while we wait to see if Trump wins the 2024 election.

Now Smith's report offers a simpler answer: If the former president wins re-election, he would also enjoy immunity for the most serious crimes committed during his first term.

The incentives embedded in this outcome are obvious, albeit counterintuitive. They are extremely dangerous for the future of American democracy.