The effort to punish Donald Trump for his attempts to overturn the 2020 election ended last week with a whimper. While most Americans were focusing on Thanksgiving with their families, Trump’s political allies were completing the greatest escape from criminal justice in the nation’s history.
Last Wednesday, a Georgia prosecutor filed a motion to end the final election-interference case against the president, and a judge obliged by promptly dismissing it—thus killing what may have been the final chance that Trump will face a criminal jury for the gravest assault on American democracy since the Civil War. The prosecutor’s timing was no coincidence. Like the dismissal of the federal criminal cases against the president and like his pardons of thousands of January 6 rioters, Trump and his political allies aim to quietly kill the cases against them so the American people will forget the crimes they committed against our country.
Pete Skandalakis, a state official standing in for the disqualified Fulton County District Attorney Fani Willis, blended political polemic and practical considerations in his motion rationalizing an end to the case. What he did not do is suggest that the plot perpetrated by Trump and his co-defendants was legal.
Skandalakis wrote that “it is not illegal to question or challenge election results.” But the defendants in the case—who also included Trump’s former lawyer Rudolph Giuliani and his former chief of staff Mark Meadows, as well as three so-called false electors—were not prosecuted for expressing their political opinions, or for seeking to challenge the results of the election through lawful means like lawsuits or recounts. Instead, as Skandalakis later wrote, “the indictment alleges a compelling set of acts which ... would establish a conspiracy ... to overturn the results of the November 2020 Presidential Election in Georgia, and in other states across the country.”
Why, then, did Skandalakis dismiss the case? He gave different answers for different defendants. For the false electors, who were accused of “unlawfully falsely [holding] themselves out as the duly elected and qualified presidential electors from the State of Georgia,” he determined that he could not prove their criminal intent beyond a reasonable doubt. There may be some justice in that, at least for some of the unindicted electors. The key question is whether the electors were co-conspirators or pawns. Some of the false electors in swing states around the country seem to have believed Trump’s aides who told them that their Electoral College votes would be counted only if a court later ruled that Trump had won the election. If that was the plan the indicted Georgia electors believed they were participating in, then Skandalakis was right to dismiss the charges against them.
The central conspiracy in the indictment, and the greatest injustice in its dismissal, was the attempt by Trump and his advisers to pressure Georgia election officials to manipulate the state’s vote totals and force the illegal counting of electoral votes cast for him on January 6, 2021. Skandalakis seems to concede the plot was illegal when he suggests that the appropriate venue for its prosecution was special counsel Jack Smith’s federal case in Washington, D.C., which Smith ended upon Trump’s reelection. Skandalakis then suggests that the inevitable yearslong delay in trying Trump for state crimes after he leaves office in early 2029 renders the prosecution not viable. And, he claims, prosecuting Trump’s advisers without him would be “unproductive” and a “financial burden” on the prosecutor’s office.
This shell game, in which justice is never at hand but only off in some other court or jurisdiction, where prosecuting the most serious crimes ever committed by an American president and his political allies is somehow not worth it, is sadly familiar. Like the dismissal of Smith’s federal charges in D.C.—and in Florida, in the classified documents case—it has nothing to do with guilt or innocence.
That is the tragic conclusion of the criminal cases against Trump. He will evade prison not because he is innocent of the crimes with which he has been charged but because he has improbably succeeded in evading the reach of the law.
The Georgia dismissal is the latest salvo in the profound corruption of the American justice system wrought by Trump and his political allies. This year, the Department of Justice has brought transparently partisan prosecutions and investigations for minor mortgage document errors allegedly committed by Trump’s political opponents, including New York Attorney General Letitia James and Senator Adam Schiff. And in an Orwellian turn, federal prosecutors are now reported to be investigating Willis, the original prosecutor in the Georgia case, for unspecified offenses, after Trump said she is a “criminal” who “should be prosecuted.”
Meanwhile, Trump and his Georgia co-defendants will walk free without ever having to face a jury of their peers for their alleged crimes. Trump has already pardoned his adviser-accomplices, including Giuliani, John Eastman, and Kenneth Chesebro, for any federal crimes they committed as part of his plot. (Full disclosure: I served as the expert witness on constitutional law in the disbarment proceeding against John Eastman, and the Fulton County district sttorney relied on my report on the unlawfulness of the alternate electors scheme in the criminal prosecution of Kenneth Chesebro.) And perhaps most shamefully of all, on the first day of his second term of office, Trump pardoned more than 1,200 people convicted of federal crimes related to the Capitol riot on January 6, including hundreds who assaulted law enforcement officers.
But neither Trump nor the Georgia prosecutor can pardon or dismiss the legal and moral truth. Trump and his accomplices tried to steal the 2020 presidential election. The means through which they attempted to achieve that theft was the manipulation of the legal system, from the submission of false slates of electors to the pressure campaign on Vice President Pence to interfere with the electoral count on January 6. That scheme was unlawful, regardless of whether its perpetrators ever serve a day behind bars.
Trump and his allies who committed crimes in pursuing their plot will probably never face a jury’s judgment. But the truth remains: Trump lost the 2020 election and lied to the American people about it, and then he unlawfully tried to seize power by manipulating the legal system. If American democracy is to survive, we must remember that unvarnished truth so those who would seek to subvert it in the future never hold power again.
