| Despite a flurry of dramatic last-minute developments, the midterm elections this week remain on course to provide a much-needed political rebuke to Donald Trump and the Republican majority in Congress. The only question as a practical matter is how bad it will be — and, in particular, whether Democrats manage to wrest control of the Senate from Republicans in addition to the House. |
| After the electoral dust settles, the political landscape will change significantly — and so will the nature of the legal themes and disputes at the center of American politics. This is a guide to what you should watch — and what I will be watching — in the weeks, months, and (yes) years to come. |
| Litigating the Election Results |
| The results could take some time to settle if Trump’s Justice Department continues its partisan meddling efforts, and especially if Democrats retake the Senate by a single seat and one of the Senate results is close. That would increase Trump’s political incentive — as corrupt as it may be — to try to claim the seat for the Republican candidate so that the party can retain control of the Senate, which would let Trump keep confirming political appointees and more judges in his last two years in office. |
| This unprecedented and corrupt scenario should not come to pass, but a single-seat Democratic majority in the Senate is the result that would bring out the worst in Trump and his administration officials. |
| Regardless of the exact outcome, election officials across the country and independent experts have braced themselves for a wide array of election-related threats from the Trump administration — more investigations, lawsuits, and threats of prison, and perhaps even seizures of ballots or voting machines. |
| Thus far, the Justice Department’s efforts have comprehensively flopped. |
| Over the weekend, the judge presiding over the department’s lawsuit in Alaska dismissed the case, finding that — after all of the DOJ’s filings and amended filings and the Trump administration’s campaign of public whining — the department never managed to come up with a plan for reviewing the ballots that was feasible or that made any sense given ballot secrecy requirements. The judge concluded that the government had failed to satisfy the “redressability” element of Article III standing — the requirement that a judgment in favor of the plaintiff would actually remedy the alleged injury. |
| Things are going so badly for the department that it is now trying to prevent litigants from contesting the government’s factual allegations in court. |
| On Sunday, in a case concerning the administration’s list of 20,000 supposed noncitizens on California’s voter rolls, the Justice Department asked a judge to sanction one of the plaintiffs after the group’s experts found that the list was — once again — riddled with errors. The filing was signed by someone named Ty Turley Trejo — a new political appointee at the department and a relatively inexperienced lawyer who, so far as I can tell, has never worked for the government before. |
| The filing is silly and will not go anywhere — a competent litigator would not have filed it at all — but this is what happens when the top level of the department is run by unscrupulous, inexperienced, and incompetent lawyers. |
| They can wreak a lot of havoc and confusion — and that itself is bad — but they will not magically become brilliant or effective in court after Tuesday. |
| The Stakes for Control of Congress |
| If the House flips, as is widely expected, Democrats will acquire considerable but constrained power. |
| As a legislative matter, the most consequential fights are likely to concern government funding and spending. Democrats will probably want significant changes and commitments from the administration to keep the government open — for instance, restoring health care subsidies and funding for social service programs — but it is unclear whether the Trump administration will engage with Democrats or even honor any agreements. We could see some long government shutdowns again. |
| The stakes for control of the Senate are high. If Democrats manage to retake that chamber too, Trump will lose his ability to easily confirm political appointees and judges — including Supreme Court justices. |
| That means it could be years before Republican appointees Samuel Alito and Clarence Thomas — the court’s two most partisan justices — are able to retire with a Republican president appointing and a Republican-controlled Senate confirming their replacements. |
| If Democrats also manage to take the White House in 2028, Alito and Thomas could be stuck on the court through 2032 at least, and perhaps longer. |
| Congressional Oversight and Accountability |
| Trump’s opponents and the political press are prepared for a new period of congressional oversight and accountability, but the devil will be in the details — both procedurally and substantively. |
| The most effective oversight effort by Democrats will be organized, focused, and coordinated across committees, which is much easier said than done. At the moment, we do not even know with certainty who the House committee chairs will be, and some members could challenge the current ranking Democrats on committees for leadership positions. |
| That said, it is a safe bet that Rep. Jamie Raskin will run the House Judiciary Committee and that Rep. Robert Garcia will run the House Oversight Committee. Raskin and Garcia have been effective as ranking members; they are healthy and energetic, which is not as common in Congress as it should be; and they are well-liked by their Democratic colleagues. |
| It remains to be seen what Democrats’ substantive oversight priorities will be, but it will be important in the years ahead to be discerning. There is a strong incentive for political reporters and commentators to overstate small investigative developments that may ultimately go nowhere, particularly if politicians or pundits are promoting them as major events. |
| By now, we have seen enough Trump investigations fizzle out — congressional and criminal — to know better. |
| 2028 and Beyond |
| As this all unfolds, a separate set of questions will slowly move to the center of American politics, particularly as the political media turns its focus more intently toward the 2028 primaries and the next presidential election. |
| There will be lots of talk about “the beginning of the end” for Trump and Trumpism, about who will succeed him as the Republican standard-bearer for 2028, and about a post-Trump and post-MAGA future for the Republican Party. |
| On the Democratic side, we will start to see candidates offer sweeping visions for what comes after Trump, but already, it is clear that several major themes and sets of questions concerning the American government and legal system deserve considerable attention. |
| The first set of questions concerns how to repair and restore the effectiveness and integrity of the executive branch — which has been gutted by Trump and the Republican majority in Congress — and how to reposition Congress as a properly functioning legislative body. |
| The second set of questions concerns how to rebuild the Justice Department, what the relationship should be between a future DOJ and a Democratic president, and what the appropriate role of the attorney general should be. The country deserves something between the rank partisanship and ineptitude of Todd Blanche, on the one hand, and the well-intentioned but deeply misguided political myopia of Merrick Garland, on the other. |
| Last but not least: post-Trump accountability. |
| We have been here before, of course, and that did not go well. The last administration blew it — Trump could have been under house arrest right about now — and he managed to get reelected. This time around, Trump will have the benefit of presidential criminal immunity, and he may issue a mass pardon before he leaves office. |
| The tools available for post-Trump accountability will be narrower and different, but they will exist. It will be up to candidates in the Democratic primary to articulate their own visions for what that might look like, and it will be crucial for the winner to commit, at least at a high level, to a plan or process that accounts for the possibility of a mass federal pardon and that wins meaningful buy-in from the public. |
| In short, we are on the cusp of a new chapter in American politics, but the plot beats at a very high level are going to be similar to those we have already seen in the Trump era — a period of divided government in which Democrats focus heavily on congressional oversight; a presidential primary and election with Trump and Trumpism very much in the background (if not the center of the frame this time around); and a push for serious and effective post-Trump accountability. |
| Will this time be different? That, of course, remains to be seen, but it will depend on decisions made by political actors and the public in the months and years to come. |
| If those questions and choices are of interest to you, then you’re in the right place. |
