| With just five weeks to go until the midterm elections, Donald Trump remains wildly unpopular with the American people, and Republicans are on track to lose control of the House and perhaps the Senate. Americans are frustrated with Trump’s handling of the economy and war with Iran, and Trump has made things worse by repeatedly telling the public that the midterms are a referendum on his job performance. |
| On Tuesday, Republicans on the Senate Judiciary Committee will take another politically baffling step when they convene a hearing with former special counsel Jack Smith, who will testify about the criminal cases that he and his team of prosecutors brought against Trump. The hearing is billed as a session on Smith’s “Abuse of Authority and the Targeting of Republicans.” |
| The hearing will also serve a different and unintended purpose at this politically precarious moment for the Republican party — as a reminder that Trump’s second presidency was entirely avoidable. It was brought to us by Republicans on the committee and elsewhere who dismissed Trump’s threat to the country’s democratic institutions and who have participated in a years-long propaganda campaign to discredit the effort by the Justice Department to hold Trump criminally accountable for his effort to overturn the 2020 election results. |
| Trump could have been in federal custody right now — either in prison or under house arrest at Mar-a-Lago — if Smith had been allowed to put Trump on trial for trying to steal the 2020 election. Instead, Republican elites and voters ultimately rallied around Trump, chose him as the party’s 2024 nominee, and paved the way for a presidency that continues to wreak havoc on people all over the world. None of this had to happen. |
| As a political matter, the Trump prosecutions are not favorable terrain for Trump or congressional Republicans, which makes this week’s hearing with Smith even more perplexing. |
| Most Americans — including roughly two-thirds of political independents — continue to believe that the federal and state criminal prosecutions of Trump were justified. Those figures have not changed much over time and, if anything, have gotten worse for Trump as his second presidency has progressed. It’s also strange for Republicans to remind the public and the media of the last time that Trump tried to interfere with U.S. elections, just as he is in the middle of another wide-ranging effort to manipulate the outcome of the upcoming midterms. |
| There are several reasons that Trump got reelected despite his effort to overturn the 2020 election results and the federal criminal cases against him. They include the poor decision-making of former Attorney General Merrick Garland, but mostly, the outcome was the result of decisions made by Republican political elites and voters. |
| Senate Republicans could have disqualified Trump from seeking reelection by voting to convict him after he was impeached following the siege of the U.S. Capitol in 2021. With few exceptions, they gave him a pass instead. |
| Trump’s principal opponents in the 2024 Republican primary might have been able to beat him if they had endorsed the legitimacy of the federal cases and condemned his efforts to stay in office. Former South Carolina governor Nikki Haley could have been president right now, but instead, Trump’s Republican adversaries fumbled around and defended Trump against the legal onslaught. |
| The Republican appointees on the Supreme Court also did their part when the six justices — who claim to be textualists and originalists — created a doctrine of presidential criminal immunity with no basis in the text of the Constitution, the Framers’ expectations when they wrote it, or the history of the country’s founding. Most Americans disagreed with that ruling both before and after it was issued. |
| On Tuesday, Republicans on the committee are likely to pursue several lines of attack against Smith based on internal communications that the FBI has been sharing with committee Chairman Chuck Grassley, but none of them are persuasive. Indeed, they all inadvertently underscore how essential the support of the Republican political class has been to Trump’s survival. |
| Congressional Republicans have, for instance, attacked Smith’s team for gathering metadata from their phone records, but the team did this because those Republicans were communicating with Trump and his White House team during the period when Trump and his allies were pursuing their efforts to overturn the election. It is not Smith’s or his team’s fault that congressional Republicans chose to do this, and it would have been investigative malpractice to ignore those communications. |
| Republicans have also gone after Smith because his team obtained some members’ text messages, but nothing nefarious happened there, either. Those messages came from White House records, and they existed (again) because congressional Republicans chose to communicate with the White House during the relevant period. |
| Along similar lines, Republicans have claimed that Smith perjured himself because he did not disclose the existence of the text messages under questioning by Republicans on the House Judiciary Committee earlier this year. In fact, all Smith did was answer their poorly constructed questions. Any effort to prosecute Smith for perjury based on that exchange would fail spectacularly. |
| As for why Senate Judiciary Republicans have chosen this politically unhelpful moment to resuscitate the history surrounding the 2020 election, there appears to be a simple reason: They, unlike most of the rest of the country, strongly support Trump and his presidency. |
| As a result, they are willing to promote misleading political and legal narratives if they think that it will help Trump — something we saw in striking fashion when Republican Thom Tillis used his time during Todd Blanche’s confirmation hearing to rail against Garland and the Biden Justice Department for pursuing Trump in the first place. Tillis has criticized both Biden and Trump for using the Justice Department to pursue their political opponents, but there is no credible comparison between the two on this point. |
| The Trump prosecutions were supported by the facts, the law, and common sense. |
| By contrast, Trump has used the Justice Department to spin up tenuous if not wholly frivolous cases against his political adversaries, including former FBI Director James Comey, New York Attorney General Letitia James, former Federal Reserve Chairman Jerome Powell, Federal Reserve Governor Lisa Cook, and others. The fact that Trump campaigned on this project — that we knew something like this would happen — makes the consistent support of Tillis and other Republicans even worse. |
| Meanwhile, Democratic congresswoman LaMonica McIver is on track to stand trial in a preposterous case that charges her with assaulting immigration officers after a scuffle at an ICE detention facility in her district caused by the belligerence and incompetence of the federal officials onsite. There is almost no chance that McIver will be convicted by a jury, much less sentenced to any period of incarceration, but the Justice Department is wasting taxpayer money to pursue her anyway — presumably because it’s a way to deter congressional oversight and political opposition to Trump’s immigration enforcement program. |
| If history is any guide, Senate Republicans on Tuesday will loudly denounce Smith and criticize him using disingenuous talking points and misleading characterizations of federal law enforcement procedures. It will be the latest in a long line of episodes in which congressional Republicans have stuck their necks out to defend Trump. |
| They appear to be committed to the bit, but had they chosen a different path a few years ago, the country — and the world — could have been spared Trump’s second term, and Trump himself might have been in prison right now instead of the White House. |
