Donald Trump’s indictment earlier this month on 37 counts related to mishandling classified information set off a firestorm on the political right. Conservatives accused Joe Biden of using the justice system to prosecute his main political rival and attempting to “steal” the 2024 election. Kevin McCarthy, the Republican speaker of the House of Representatives, promised to “hold this brazen weaponization of power accountable”. In short, the right wants us to believe that Biden and his administration will stop at nothing to put Trump in jail as quickly as possible.
In fact, the exact opposite is true. Worried about just this type of accusation, the justice department under Merrick Garland and the FBI have approached their investigations of Trump much too cautiously. Far from being persecuted because of who he is, Trump’s status as a former president and as the unofficial leader of the Republican party have led to him being handled with vastly more deference than anyone else would be. The result has been a series of delays and missteps which may allow Trump to escape accountability once again.
It is now nearly 18 months since the government first recovered classified material from Mar-a-Lago in early 2022. Although the justice department concluded shortly afterwards that Trump likely possessed further sensitive material, it took seven months for Mar-a-Lago to be searched, in part because the FBI feared that the move would open the agency to accusations of partisanship. Trump was then only indicted nearly a year later. After his initial arraignment he remains a free man, released without having to post bail – despite credible concerns he may still have additional classified material in his possession.
Compare that timeline to the events surrounding the arrest of intelligence contractor Reality Winner, who in 2017 received a five-year prison sentence for leaking one document to the news website the Intercept. The document Winner leaked was written on 5 May 2017 and she was arrested on 3 June, days before the Intercept even had a chance to publish its article about her leak. She was indicted on 8 June and jailed pending her trial. Winner later pleaded guilty to violating the Espionage Act – precisely the law that it seemed clear Trump had flouted for over a year before he was indicted.
Trump has likewise been slow to face consequences in the federal investigation into his actions leading up to the insurrection at the US Capitol. According to a new report by the Washington Post, the justice department and FBI delayed launching a probe into Trump’s push to overturn the 2020 election for 15 months, again because of fears that they would be criticized for partisanship. The agencies instead pursued cases against rank-and-file insurrectionists, ignoring the existence of evidence implicating Trump and his inner circle until media and political pressure forced them to begin taking it seriously.
These delays matter because they make it possible – even likely – that Trump will never truly face accountability for his actions. Trump’s trial in the documents case is unlikely to be held before the 2024 presidential election and the same is true for any possible charges in the January 6 case. If Trump wins the election and becomes president again – as current polls suggest he will – then he will have multiple tools at his disposal to derail the trials or even pardon himself. Justice delayed will be justice denied.
Efforts by the justice department and other agencies to appear non-partisan have been well-intended but outdated. The modern conservative movement will give the Biden administration and the law enforcement agencies little credit for proceeding so slowly and deliberately. Instead, the justice system’s extreme deference to conservative complaints will only encourage the Maga movement to double down. If federal law enforcement can be so easily scared away from enforcing the law without fear or favor, we can expect more hysteria and finger-pointing – even threats of violence – to follow in the future.
These events also set a catastrophic precedent. The sitting president’s immunity from prosecution and the political barriers to impeachment leave criminal proceedings after a president leaves office as the last available means of imposing accountability. If law enforcement agencies are too scared to investigate prominent politicians promptly and effectively, even that opportunity will vanish and presidents will be left with virtually no checks on their behavior.
But worst of all is the fact that if Trump gets off the hook and re-enters office, the independence and integrity of the justice department and FBI are likely to be destroyed anyway. He has made it clear that he would seek to weaponize law enforcement agencies against his political opponents, including by forcing the justice department to follow his personal and political vendettas.
Trump himself represents a unique threat to the rule of law and the independence of American law enforcement, one which must be confronted with appropriate but aggressive tools. Sadly, thanks to years of misplaced appeasement, it might already be too late.
Andrew Gawthorpe is a historian of the United States at Leiden University. He hosts a podcast called America Explained and writes a newsletter of the same name