The issue isn’t should Trump be barred from the ballot? It’s why isn’t Trump already in prison?!

Justice delayed is a threat to our democracy!

On Thursday morning, the US Supreme Court will hear 80 minutes of oral argument as they consider whether Donald Trump is “disqualified from holding the office of President under Section 3 of the 14th Amendment”? In the lead up to the argument, there has been a tsunami of news stories speculating what the court will do—with some arguing Trump should be barred while others arguing the opposite. (Spoiler: He should 100% be!)

But in reality, the question that must be answered is this: Why isn’t Donald Trump already in prison?! Trump’s crimes for his attempted coup took place more than three years ago.  And yes, I fully grasp as a former trial lawyer that the criminal justice system moves slower than an episode of “Law & Order.”

However, given that our nation had never witnessed a sitting President attempt to remain in power despite losing an election, you would think that the Department of Justice would’ve moved swiftly to hold the leaders of that illegal and undemocratic scheme responsible to send a message that there will be severe consequences for such an action!

Instead, as we learned from past detailed reporting from The Washington Post and other sources, Attorney General Merrick Garland and the FBI waited more than a year after Jan 6 to begin an investigation into Trump’s obvious crimes. Why? One reason The Washington Post noted was, “A wariness about appearing partisan, institutional caution, and clashes over how much evidence was sufficient to investigate the actions of Trump and those around him all contributed to the slow pace.”

It's unclear what the actual reason behind this was but we know the result. Garland intentionally did not focus on Trump’s obvious crimes.  The real-world impact—as The Washington Post detailed—was that DOJ lawyers at the time “complained that the attorney general’s determination to steer clear of any claims of political motive has chilled efforts to investigate the former president.” One former Justice official briefed on prosecutors’ discussions put it bluntly: “You couldn’t use the T word.” (“T word” is obviously for Trump.)

Backing this up was NY Times reporting back in July 2022 that DOJ was not actively investigating Trump but instead focused on those who attacked the Capitol. That approach only changed after the blockbuster testimony of former Trump aide Cassidy Hutchinson before the Jan 6 committee in June 2022. Given the nation now heard that Trump “knew some of his supporters at a rally on Jan. 6, 2021, were armed, that he desperately wanted to join them as they marched to the Capitol and that the White House’s top lawyer feared Mr. Trump’s conduct could lead to criminal charges,” Garland was reportedly finally “jolted” into action.

The most damning part of this 2022 NY Times story was reporting that DOJ was largely unaware of the facts Cassidy told the Jan 6 committee before she testified publicly. Why? After all, the Jan 6 committee had interviewed Hutchinson even before her June 2022 public testimony where they learned that Trump was personally involved in so many aspects that led to the Jan 6 attack. They also learned Trump had told his then chief of staff Mark Meadows that he knew he lost the 2020 election and more.

Why didn’t DOJ know that?! In fact, the DOJ has more power than Congress to compel testimony because a grand jury subpoena cannot be ignored while, as we’ve seen, congressional subpoenas can often be with no consequences--just ask GOP Rep Jim Jordan.

And as the NY Times reported back in 2022, GOP Rep Liz Cheney--who was vice-chair of the Jan 6 committee--was pressing in mid --2022 for the Jan 6 committee to recommend criminal charges against Trump for one reason: “Forcing Mr. Garland’s hand” to criminally investigate Trump.

But again, why?  Why would Garland—who is the highest-ranking law enforcement officer in our nation—need to be pushed to investigate Trump given his obvious role in Jan 6?! In fact, the  Jan 6 House committee’s final report put it perfectly: “The central cause of January 6th was one man, former President Donald Trump, whom many others followed. None of the events of January 6th would have happened without him.”

The need for Trump to be swiftly charged was made even more acute given that just a month after the Jan 6 attack, there was Trump on Feb 28, 2021, giving a speech at the conservative CPAC convention where he was talking about a possible 2024 run. The headlines at the time noted just that: “Trump teases 2024 presidential run in lie-filled CPAC speech.”

That means when Garland was sworn in as Attorney General a few weeks later on March 11, 2021, he knew Trump was not simply going to fade away. Rather Trump—who already had met weeks before with then GOP House leader Kevin McCarthy at Mar-a-Lago—was planning to remain a very visible figure in American politics. It was then that Garland should’ve appointed a Special Counsel to investigate Trump’s role in Jan 6 and his behind-the-scenes efforts to remain in power despite losing the election. But he did not.

And by October 2021, Trump began holding large campaign rallies, the first in Ohio were thousands gathered to hear Trump talk about “Saving America.” Why didn’t Garland at least then appoint a Special Counsel given it was obvious that Trump was planning to run again in 2024?!

Instead, Garland finally announced the appointment of a Special counsel in November 2022, after Trump formally declared he was again running for president.  At the time, Garland stated, given “the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel.” In reality, it was clear from Trump’s first large campaign rallies in the fall of 2021 that he had every intention of running in 2024!

Keep in mind, it only took Special Counsel Jack Smith nine months from the date he was appointed to obtain an indictment of Trump for four serious felonies for his efforts to prevent the peaceful transfer of power. As the indictment in that case reads, “Despite having lost, the Defendant was determined to remain in power.”   From there, as detailed in the indictment, Trump “pursued unlawful means of discounting legitimate votes and subverting the election results.”

If Garland had appointed Smith even as late as November 2021, it’s likely he would have been able to secure this same indictment by the fall of 2022. That would’ve meant Trump’s trial would’ve taken place seven to eight months later in summer of 2023.  By now, Trump would be convicted and in federal prison---or close to reporting to serving his prison sentence. Even adding time for delays in that case, Trump would certainly be a convicted felon by now.

Instead, here we are hoping that Trump’s Jan 6 criminal trial will happen before Election day—something that a new CNN poll found more than 65 percent Americans want to see happen before then.

In the end, we will have to defeat Trump again. And we will. But Garland still should answer questions about why he delayed his investigation of Trump, thus, both helping undermine the severity of his crimes and helping to normalize Trump!

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