The yearslong effort to vanquish Donald Trump in court was a dismal failure.
For liberals like me, it may be tempting to attribute the collapse of the various cases against him to convenient explanations of process or personnel. The more uncomfortable truth is that our search for political salvation primarily through the law has backfired. To oppose Mr. Trump in his second term, liberals must learn the lesson of this defeat, which is that there is no alternative to persuading our fellow citizens of our beliefs.
For decades, liberals have made the mistake of prioritizing legal victories over popular ones. It was a method of prolonging the civil rights movement even after its opponents assembled a majority to halt it. Fifty years ago, Richard Nixon’s four Supreme Court appointments — Mr. Trump got only three — shoved the court right and consigned liberals to damage control. While liberals saw breakthroughs afterward for women and L.G.B.T.Q. people, delivering progress more quickly than elections could, they failed to stop the conservative drift of American law.
A few victories made it easy for liberals to forget that the law is just another domain of politics where their enemies enjoy power too. They talked of law as a matter of principle, ignoring that their movement had mainly treated it as a weapon for legalistic political change. Legalism’s greatest theorist, Judith Shklar, defined it as the adoption of an ethics of rule-following and defended it as a useful strategy. Along the way, you claim that the rules are on your side and impose them on your political enemies, and sometimes yourself, because the results are good ones.
The trouble is that they regularly aren’t. In this election, legalistic tactics contributed to Mr. Trump’s victory, helping to produce the popular majority he had never boasted before. For all of Mr. Trump’s misdeeds, prosecuting them was not worth the cost of restoring him to power.
Liberals have rooted their opposition to Mr. Trump in the law since his first month in office, when lawyers descended on airports to challenge his racist travel ban. The results were mixed: The ban was blocked, but then replaced with a version designed to earn the Supreme Court’s sign-off.
The legalistic resistance was supercharged in May 2017 when Robert Mueller was appointed as special counsel to investigate Russian election interference and Mr. Trump’s “collusion” with it. But when Mr. Mueller’s inconclusive report was released in April 2019, it was an embarrassment to liberals. The politics of law had misdirected their focus for years, and in the process convinced millions of Americans that Mr. Trump’s foes were as prone to conspiratorial thinking as his allies. Cries that Mr. Trump’s opponents were engaged in “lawfare” suddenly gained credibility.
That would prove fateful when, after Mr. Trump’s attempt to overturn the 2020 election, culminating in the Jan. 6 attack, criminal cases began to accumulate against him. The special counsel Jack Smith opened his investigation in November 2022; he had help from the House, which, after the Senate acquitted Mr. Trump in his second impeachment, conducted its own Jan. 6 investigation and referred the findings to the Justice Department for another chance at accountability. Mr. Smith also led the investigation and indictment of the former president for keeping classified documents. Finally, prosecutors in Georgia and New York began inquiries, one into the pressure Mr. Trump had placed on state officials to reverse his 2020 loss, and the other into the hush money he paid a porn star during his campaign.
The Georgia case had the most solid grounding in the law, and might have been worth pursuing in isolation, but it stalled out thanks to its feckless lead prosecutor. It was the lurid New York case, widely seen as the most legally flimsy and nakedly political, that succeeded. In their totality, the trials became all-consuming, part of a larger pattern of seeking some law — like the Constitution’s rediscovered Civil War-era ban on insurrectionists in office — that might pre-empt the need to beat Mr. Trump in the court of public opinion.
But agonizingly, Mr. Trump revealed how unprepared the law was for his acts. The law is open to interpretation, and even when clear it allows for discretion and selectivity in its enforcement.
Yet many liberals, convinced that their causes were righteous, didn’t register the risks of this legalistic strategy, which included being seen by voters as treating the law as politics by other means. The criminal investigations fueled their target’s dominance of the Republican primary race and breathed new life into his campaign fund-raising. The election became something like national jury nullification — after the fact for the New York case, and pre-emptively for the others.
“Rather than focusing solely on the legal issues, the Trump defense adopted a high-stakes legal gambit that transformed these criminal charges into political opportunities and essentially bet the farm on the outcome of the election,” Robert Mintz, a former federal prosecutor, noted. The bet paid off.
“I have no interest in recriminations,” Benjamin Wittes wrote after the election on Lawfare, the website he helped found to resist how law was being used to hem in the president during the war on terrorism. In 2016, he transformed it to call for using law to hem in Mr. Trump. But Mr. Wittes conceded, too, that the criminal trials “so spectacularly failed to convince the public of Mr. Trump’s unfitness that the man now commands majority support among those who vote.”
That, as Mr. Wittes registered, is a flabbergasting outcome. And it should drive, far more than recriminations, a departure from our old strategies in the Trump era. If his victory does not lead liberals to reorient their opposition away from the courts, there will be no way past the numb feelings of inevitability with which many have greeted his 2024 breakthrough.
Unsurprisingly, legalistic moves produce a struggle for more power over the law. Mr. Trump’s choices for attorney general — first Matt Gaetz, now Pam Bondi — were predictable responses to the protracted attempt to hold him accountable. His rationale for both, as he put it, was ending the weaponization of the Justice Department — the honest response to which is that law has always been a weapon, and what matters is whether it advances just or unjust outcomes on balance.
Whoever ends up appointed, there can be no federal criminal investigations or prosecutions of Mr. Trump while he is in office. The Supreme Court may furnish liberals occasional wins in litigating his excesses, controlling some damage. But because of the Supreme Court’s position at the apex of the system, the federal courts will remain enduringly hostile territory for liberal interpretations of the law.
State courts may prove friendlier. But those committed to litigating Mr. Trump’s policies aggressively should keep in mind the risk of producing illiberal and noxious precedents that could last for decades. Such was the risk incurred in the travel ban case as well as the Smith investigation, which has nothing to show for itself except the Supreme Court’s decision granting the president broad immunity from prosecution.
Doing nothing is not an option when Mr. Trump’s rule begins again. But there are the midterm elections in two years, and in the meantime a Democratic Party in dire need of reimagining and a public to win over.
“Liberty lies in the hearts of men and women,” Learned Hand, the liberal judge, remarked in 1944. “When it dies there, no constitution, no law, no court can even do much to help it.” Without convincing our fellow citizens of the highest ideals to hold in their hearts, the law cannot make as much difference as many liberals have hoped. Instead, it has helped the enemies of liberalism win.
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