Did the Legal Process Over the Last Four Years “Fail”?

Ben Wittes reflects in considerable anguish on the likely course of President-elect Donald Trump’s legal troubles, and asks: Was it all pointless? He finds some lasting value, but far from what the legal process should have produced. That process, he concludes, failed. It did not “treat Trump as it does other people accused of committing comparable crimes”; did not protect democracy but instead, in the ballot disqualification and immunity decisions, “impede[d] justice and facilitate[d] Trump’s rise back to power”; and did not so clearly make the case against Trump that voters declined to award him a second term. So much, he writes, for all that “nonsense” about this being, in John Adams’s words, “a government of laws, not men.”

I share Wittes’s anguish in critical respects, certainly in my distress over the outcome of the election. But still the critique of the “process” or “system” overlooks and omits hard questions about how failure is determined.

The process was severely tested, and the question of “failure” can be judged only in that context. A key strain was the issue of a former president’s legal immunity, both its existence and its scope—especially in the context of a president’s administration investigating and prosecuting his opponent in the preceding election and likely opponent in the next. Presidents are already not treated as “other people accused of committing comparable crimes”: For a half-century, administrations of both parties have embraced the principle that presidents cannot be prosecuted while in office, and the Biden administration stood by that view before the Court. This point not being in dispute, it was not a step too far to the proposition that former presidents, on the same underlying principles, would claim some immunity. In Trump v. United States, the solicitor general agreed. Objecting (rightly) to any former presidential assertion of “blanket immunity,” the United States nonetheless took the position that “special protections” against liability were necessarily available to protect the office in the discharge of its constitutionally assigned responsibilities. Early in the argument before the Court was this exchange between Justice Samuel Alito and Michael Dreeben appearing for the United States:

ALITO: [B]ut, as I understand your argument, you do recognize that a former president has a form of special protection, namely, that statutes that are applicable to everybody must be interpreted differently under some circumstances when they are applied to a former president. Isn’t that true?

DREEBEN: It—it is true because, Justice Alito, of the general principle that courts construe statutes to avoid serious constitutional questions. And that has been the longstanding practice of the Office of Legal Counsel in the Department of Justice.

This position rested on the same reasoning that led to the Office of Legal Counsel (OLC) immunizing presidents from prosecution during their term in office. In its 2000 opinion on the subject, OLC reaffirmed its 1973 conclusion that it was “the best interpretation of the Constitution” that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” As the United States argued it in Trump v. United States, the application of the principle was different in the two cases, those of an incumbent and a former president: Blanket immunity would block prosecution altogether, whereas a former president appealing to these “special protections” would have to argue for them after the case had been brought, in the course of trials and appellate review. Either way, former presidents would not be treated like other people “accused of committing comparable crimes.”

This is not to suggest at all that the immunity opinion that emerged from the Court was sound or that it met the moment. Before proceeding, a word on my own “priors.” I have written critically about the 1973 and 2000 OLC immunity opinions. And, of all the issues my co-author Jack Goldsmith and I addressed in our book, “After Trump,” we differed on the degree to which an administration should be especially cautious about prosecutions of a former president by a successor administration. In the book, we set out our competing positions: my view that “Trump should face a full investigation is determined by the merits of the matter and that he should not receive a blanket prospective pardon,” and then Goldsmith’s case for “extreme caution in criminal investigation of a prior president for acts done in office.”

What Goldsmith had to say about the risks certainly bears keeping in mind when, as in Wittes’s account, the system is faulted for the failure to affect voter judgment about the defendant-president. Goldsmith expressed concern, approaching confidence, that “even if the investigation is conducted with strict integrity, the Justice Department of one administration viewing the actions of the President and others through a criminal lens will invariably appear political to a large chunk of the country[.]” Certain to last years, “with no guarantee at all” of success, the investigation would proceed in ways that boost the “politicization narrative” and “over time the investigation will become scorched-earth because the scorched-earth defenses of the president and his subordinates will require a proportionate response.” And then there is a risk that “the entire enterprise threatens to begin a tit-for-tat cycle of recrimination across administrations.” 

I could not and did not dismiss any of these concerns but concluded that the larger risk was failing to proceed with prosecutions as supported by the facts and the law. What would make the difference, maximizing rule of law values while reducing the risks posited by Goldsmith, was “sound prosecutorial judgment and tightly developed and presented cases [which would be] essential to dispel to the extent possible any suspicion that the law has weaponized for political purposes.” Goldsmith replied that “tightly developed and presented charges will be hard in this context because the legal issues are so muddled, even before one considers contested factual questions.” 

In sum, it was a messy situation, and it certainly taxed the process.

One part of that process quite definitely failed. One institution developed to provide some assurance to the public of impartiality of federal investigations of presidents, and both investigations and prosecutions of former presidents, is the office of the special counsel established by Justice Department regulation. 

Perhaps in the case of one president’s administration investigating his predecessor (and possible further reelection opponent), in a highly polarized politics, the appointment of a special counsel could never be expected to convince half the country that it was on the level. In any event, the institution does not operate as designed—and the Supreme Court’s immunity decision most likely finished it off. 

And this failure prompts attention to Wittes’s pained disillusionment with Adams’s aspiration to a “government of laws, not of men.” We have, of course, both, and they are effectively indistinguishable—a government of laws, which is the government of the men and women who write and enforce them. When the system or process seems to have failed, the laws may not have been up to the task, or those responsible for their enforcement weren’t, or both. An example of the effects of individual judgment is the RICO prosecution of Trump and allies, which Wittes finds to have “mostly self-destructed on its own.” The choices that those with public responsibility make—which at bottom are ethical choices critical to the operation of the legal process and the maintenance of democratic norms—cannot be understated and too often are.

Wittes “feel[s] like a fool for not having known” that the criminal justice system cannot produce results against the wishes of the people, by which he means justice for Trump who has been reelected to another term. He is being too hard on himself, too hard on “the process.” In ways that may be difficult for many to accept, the process on which he hoped to rely operated under exceptional pressures, uncertainties, and polarized political conditions.

This much seems clear, and it has been clear for many years, spanning many different presidencies: The adequacy of the guardrails and norms that govern the office, including but far from limited to its immunities and special protections, requires constant, careful attention. In the second Trump administration, many of these issues—such as Trump’s push for government-by-recess appointment, which is troubling even to dyed-in-the-wool conservatives—will be brought to an even finer point. 

Civil society will have a large part to play in the response. Its effectiveness in the defense of norms will depend on sound strategic choices of the issues on which to take stands and of the manner in which to take them. And the discussion of bipartisan institutional reform of the presidency, urgent and overdue, will continue. Even if the opportunity for it seems now very distant, Trump’s commitment to the most robust claims of executive authority could frame the most compelling case for reform, and enhance its prospects, when there is an opening, as eventually there will be, in the years ahead.