Not Broken

Right now, it might feel like Donald Trump broke the rule of law. But, stop and consider for a moment: this is how Trump wants you to feel. This is how all of the people around him, the ones who envision their surge to take over government in January, want you to feel. They want you to feel defeated. They want you to feel like Project 2025 is inevitable. They want you to give up, stay at home, and slowly subside into miserably drinking wine.

That is not who we are. Democrats may have lost the last election, but that’s not the same thing as losing the Republic. Far from it. And Donald Trump has not broken the rule of law. He has tortured it and stretched it out of shape insofar as it applies to him. But he has not broken it, and he has not broken us. He cannot do that unless we let him, and I don’t intend to let him.

On Monday, Special Counsel Jack Smith asked the judges overseeing the federal criminal cases against Donald Trump in Washington, D.C., and at the Eleventh Circuit Court of Appeals to dismiss them. Judge Chutkan promptly entered an order dismissing the case the same day. The Eleventh Circuit followed suit.

The cases were dismissed “without prejudice” which means that technically, they could become live again if Trump were no longer president and there were a Justice Department willing to reinstate them. But let’s be realistic. The criminal cases are over.

Trump’s response on Truth Social was predictable:

Trump posted, “These cases, like all of the other cases I have been forced to go through, are empty and lawless, and should never have been brought.”

“It was a political hijacking, and a low point in the History of our Country that such a thing could have happened, and yet, I persevered, against all odds, and WON. MAKE AMERICA GREAT AGAIN!” he added.

It’s not true. Trump was indicted by a grand jury that considered actual evidence compiled by the Special Counsel’s investigation. It wasn’t conjecture or politics, which is what Trump is made of. The judges who considered the cases, including the United States Supreme Court, never dismissed them as political artifice, although Trump asked them to. Instead, they were permitted to move forward, and where there were impediments, they were legal ones involving whether presidents were entitled to immunity for criminal acts (the election interference case) or whether the Special Counsel was properly appointed (the classified documents case). The cases weren’t dismissed because they lacked merit, they were dismissed because Trump played a delay game and ran the clock out.

Since Trump raises it, the case in Manhattan that he tries to minimize resulted in a conviction before a jury of his peers. It was the only case where a trial jury was permitted to consider the evidence against Trump in a criminal case—not the politics, which they were forbidden from taking into account, and not a jury biased against Trump, as we know from what we learned about them during voir dire. So, their verdict was hardly “empty and lawless.” Nothing about any of these case was.

If anything, the courts bent over backwards to ensure defendant and convicted felon Donald Trump received the due process rights he was entitled to. That’s frustrating in some ways, but it’s also evidence that, as unsatisfying as the result in the two federal cases styled as U.S. v. Donald Trump was, our legal system is still in place. Trump walked away, which is a tragedy for the country. Defendants sometimes do, and it is always deeply disturbing when it’s on a technicality, even more so here because of what he tried to do to the country. But he has not irreperably broken our legal system, although it may feel that way right now. Yes, it needs work; it needs refinement so that someone like Trump can’t play games and escape accountability. But Trump gets that pass because of the singular foolishness of a majority of our fellow citizens in reelecting him. Had he lost, his cases would have proceeded to trial and justice would have been done. The fault, as distressing as it is, lies at least in part with the electorate.

I noted JD Vance’s tweet after the government moved to the dismiss, finding inadvertent confirmation of the view that justice would have been done had the election turned out differently—although he certainly didn’t mean it that way—when he wrote that Trump might have spent the rest of his life in prison if he’d lost the election. Vance characterizes this as “political,” but as a Yale-educated lawyer, he knows that the final decision would have turned on whether juries of Trump’s peers deliberated and found him guilty and on how independent Article III judges chose to sentence him. Those decisions, based on the facts and the law, are anything but political. But apparently, they’re too political for the crowd that was okay with “lock her up.”

We can, and likely will, debate whether the Justice Department could have gotten these cases to trial had it gotten a fast and focused start on day one of the Biden Administration. We can consider whether that kind of approach would have made it better or worse. But the reality is that Trump never faced accountability in federal court at the hands of a jury, and the question is, what are we going to do next now that he’s been reelected?

I am still a very proud American. I love this country. I love the Constitution and the rule of law. I’m grateful to live in a place where, unlike the Eastern European cities my great-grandparents escaped from, people are not hunted down and killed because of their religion. I’m grateful to live in a country where, despite the failings at the founding, we have progressed to include Black people and women as voters, and where we continue to aspire to be more inclusive and open, including action at the state and local level when a president threatens to go the other way. Our progress is not always linear, but it is still important and a sign that our country is worth fighting for, which I intend to do. Not in the January 6, attack-the-Capitol sense of the word, but intelligently and persistently, using the tools American democracy gives us to their best use.

We still have a First Amendment right to assemble, to petition our government, and to free speech and a free press. They are ours to insist upon or lose. I intend to insist.

We have a right to vote. Preparing for the upcoming midterm elections, where MAGA may try to make it difficult to vote, is essential. That means both encouraging good candidates to consider running starting now and making sure essential parts of the electorate who feel defeated by what has happened find their way to get back up again. We can’t afford to let anyone give up.

After the election, I wrote to you about my intention of creating a Democracy Index so that we have a way to focus on what the Trump Administration is doing without becoming either overwhelmed with Trump fatigue or distracted by the bright shiny object of the day. I remember what it felt like when the fresh horrors of the first Trump Administration smacked us in the face week after week and keeping everything bad that had happened straight because it was almost insurmountable unless you could devote 24 hours a day to it (which absolutely no one should have to do unless it’s their job and they’ve voluntarily agreed to it). That project is critical to me because understanding what’s happening in real-time—even if that understanding is imperfect and we need to evolve it over time as more details come to light—will be essential when, on the eve of the midterm election, someone who hasn’t been paying attention asks you, “Tell me three bad things this administration has done?”

The way to get through this? My personal North Star is Ben Franklin, who when asked about the form of government our new nation would have responded, “a Republic, if you can keep it.” I intend to keep it. That’s the work for the next four years. Can we do it? It requires resilience. We can’t quit because we lost an election.

Late October 2016, in Washington, D.C., my last trip up before the election that year.

This is, in large measure, about us and not about Donald Trump. Yes, we will have to pay attention to understand what he is doing and assess how dangerous it is, but we don’t have to give him control. We need to focus on why the Republic matters: so we can do the things we care about and spend time with the people we love, address climate change, secure the environment, improve infrastructure and wages—a path Joe Biden started us on—and, as outdated and silly as it may sound right now, live the American Dream. Isn’t that why we’re all here, so we can have good lives and so our children and grandchildren can have good lives—not so Donald Trump and his cronies can profit at our expense?

The cavalry isn’t coming. It’s just us. And I’m thankful we’re together for it. It's no surprise that people are exhausted. It's no surprise that they feel like they've given their all and been betrayed by a country that reelected the convicted felon. But history teaches us that progress is not linear and that people who want to have a democracy, who understand that it's worth fighting for, have to stay the course even at their lowest point.

The Martin Luther King, Jr. Memorial in Washington, D.C.

We have two choices: Give up or move forward.

It’s not even close. We have a Republic to keep, and we are not quitters.

We’re in this together,

Joyce