Blame McConnell

By Barbara McQuade

As President Donald Trump’s cascade of executive orders blasts chaos into the federal government, Americans are in for another exhausting four years.

It didn’t have to be this way.

Four years ago, it was unimaginable that Trump would return to office. Just two weeks before the inauguration, rioters had attacked police officers and occupied the Capitol, delaying for hours the certification of the 2020 election. The mob was egged on by Trump, who falsely claimed that their effort was needed to “stop the steal.” The attack on democracy and the peaceful transfer of presidential power was astonishing.

Four years later, some attribute Trump’s political comeback to Attorney General Merrick Garland, who failed to secure a criminal conviction of Trump for his role in seeking to overturn the election. But the real culprits for Trump’s return to power lie in the legislative and judicial branches. Don’t blame Garland. Blame Mitch McConnell and the Supreme Court.

The legislature had the first opportunity to hold Trump accountable. After the House impeached Trump for his role in inciting the insurrection, the case went to the Senate for trial. Among the potential remedies the Constitution provides following a conviction for high crimes or misdemeanors is “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” In other words, in 2021, the Senate could have barred Trump from ever returning to the Oval Office. Because a conviction after impeachment requires approval of two-thirds of the Senate, Republican votes were needed.

At the time, the GOP Senate leader discouraged his conference from voting to convict, arguing that the criminal justice process could take care of it. McConnell said, "There's no question, none, that President Trump is practically and morally responsible for provoking the events” of Jan. 6. He called the attack a “foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth.” Blasting Trump for failing to call off the mob, he said “The president did not act swiftly. He did not do his job... Instead according to public reports he watched television happily as the chaos unfolded, kept pressing his scheme to overturn the election.” Powerful words from a member of Trump’s own party.

But McConnell failed to take the additional step of using the power of the Senate to check Trump’s potential return to power. Passing the buck to prosecutors and the courts, McConnell excused his fecklessness by saying Trump “didn't get away with anything yet. We have a criminal justice system in this country.” But, it turns out, not a criminal justice system that could protect us from Trump.

Some blame Garland for Trump’s return to the White House, arguing that he moved too slowly in his investigation. There are three problems with that argument. First, as a former federal prosecutor, I know that investigations into complex schemes with reluctant or even obstructive witnesses can take far longer to complete than many outside observers appreciate. As we know from Jack Smith’s recently released report on the Jan. 6 investigation, this case involved protracted battles over frivolous claims of executive privilege, litigation that was already underway when Smith was appointed to serve as special counsel in November 2022, after Trump announced his candidacy for president. In fact, it appears from public reports that the investigation began shortly after Garland was sworn in as attorney general in March 2021. We don’t know what action occurred within the necessarily secret process, but reporting indicates that Garland assembled a special investigative team in June 2021, to provide “more help” to the prosecutors at the Public Integrity Unit, suggesting that the investigation was already underway and growing.

Some point to the powerful House Select Committee hearings in the summer of 2022 as evidence that DOJ’s investigation could have been conducted more quickly. Unlike congressional hearings, however, a criminal prosecution requires far more evidence to withstand cross-examination of witnesses, presentation of a defense case, and proof of guilt beyond a reasonable doubt by a unanimous jury of 12 unbiased citizens.

Second, Garland likely did not anticipate the blow he would be dealt by the U.S. Supreme Court in July, when it found for the first time in our nation’s history that a former president is immune from criminal prosecution for conduct committed in the course of his official duties. Turns out Ford’s pardon of Nixon was just an academic exercise. Even McConnell did not see that one coming. And even if Garland had started his investigation earlier or had moved faster, the Court’s decision made it unlikely the case ever could have gone to trial before the 2024 election. By November, we were still going to face at least one more round of litigation all the way up to the Supreme Court to apply the newly articulated presidential immunity doctrine to the facts of this case, making a trial unlikely to have started before the fall of 2025, even if Trump had lost the election. Of course, his victory prompted Smith to dismiss the case, at least for now, on the grounds that a sitting president cannot be prosecuted.

Third, and perhaps most importantly, it is not the role of an attorney general to prevent a candidate from being elected to political office. In fact, the DOJ Principles of Federal Prosecution forbid prosecutors from taking action to influence politics. Moreover, it did not seem to matter to Trump voters that their candidate had been charged with an even convicted of criminal offenses. Trump wore them like a badge of honor, and his voters approved.

Our Constitution assigns political checks to the other branches of government. In the case of Trump, they both failed miserably. Let’s hope they take their constitutional roles more seriously this time.

Barbara McQuade is a professor from practice at the University of Michigan Law School, former U.S. Attorney for the Eastern District of Michigan and author of the New York Times bestseller Attack from Within: How Disinformation is Sabotaging America.