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Donald Trump’s desperate legal battles to block a damaging special counsel report about his efforts to subvert his 2020 election loss and his sentencing for a 34-count felony conviction in New York ultimately failed, but former prosecutors say they nevertheless reveal his continual disdain for the rule of law and his penchant for rewriting history.
One area where that may imminently play out, as Trump prepares to return to the White House, is with his repeated pledge to issue “major pardons” to participants in the 6 January 2021 assault on the Capitol in Washington.
Trump and many of his allies have repeatedly sought to rewrite the events of January 6 as merely an enthusiastic protest by patriots, rather than an attempt to prevent Joe Biden’s legitimate election win being certified, underscoring Trump’s aversion to truth telling about the insurrection, critics say.
With Trump poised to take office, his lawyers scrambled in vain – and lost – an appeal to the supreme court – to stop a New York judge from sentencing him on 10 January with no penalty for falsifying records to hide $130,000 in hush-money payments in 2016 to a porn star who alleged an affair with him, making Trump the first felon to be elected president.
Trump’s lawyers have spent days battling aggressively in the courts – with some success thus far – to halt the release of a two-part report by the special counsel Jack Smith detailing federal charges relating to Trump’s moves to thwart his 2020 defeat, and charges that Trump improperly took a large cache of classified documents with him after he left office.
A Florida federal judge appointed by Trump blocked the release of Smith’s report on both federal cases for days, but on Monday dropped her objections to the justice department releasing Smith’s report on Trump’s drive to overturn his 2020 defeat.
The department’s Tuesday release of that report dealt a major rebuke to the incoming president. Smith stressed that his office remained “fully behind” the prosecution’s merits, and its belief that it would have won the case if it went to trial as originally intended last year.
Although the 137-page report contained few new details, it provided a strong historical account of Smith’s two-year investigation, which included grand-jury testimony from over 55 witnesses and voluntary interviews with more than 250 individuals, and stressed Trump’s multiple attempts to illegally thwart his loss.
The report highlighted Trump’s repeated promotion of “demonstrably and, in many cases, obviously false” assertions about his 2020 election loss, which were integral to Trump’s pressure tactics and which helped fuel the January 6 attack.
Smith stressed that “but for Mr Trump’s election and imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial”.
Trump, who has repeatedly denied all the charges, condemned Smith at 2am on Tuesday on Truth Social as a “lamebrain prosecutor who was unable to get his case tried before the election”.
The case was slated for trial last year but short-circuited by a much criticized supreme court ruling that barred prosecutions for a president’s “official acts”. It was dropped after Trump’s election victory, since sitting presidents cannot be prosecuted.
The justice department’s release of the election subversion report by Smith, who resigned – as was expected – as special counsel on Friday, days before Trump takes office, is seen by legal experts as important for the historical record by summing up the election subversion case against Trump.
On another legal battleground, Trump has pledged that in his “first hour” in office he will make “major pardons” for some of the 1,500 January 6 insurrectionists – who he has called “patriots” – charged in the Capitol attack, despite strong concerns from legal experts that such pardons would hurt the criminal justice system. According to the US justice department, about 1,000 people have pleaded guilty to felonies or misdemeanors.
Legal critics worry, too, about potential violence and damage to the rule of law spurred by Trump’s drumbeat of dangerous threats to exact revenge against political foes, including Smith and the former congresswoman Liz Cheney, who led a House panel’s hearings into the Capitol attack.
Trump has repeatedly called the federal and New York cases against him “witch-hunts” and examples of “lawfare” that he portrays in conspiratorial terms as politically driven by Democrats.
But ex-prosecutors and legal scholars say Trump’s legal gymnastics to block his sentencing and Smith’s election subversion report, plus his promised pardons and talk of revenge, undermine the rule of law and are desperate attempts to rewrite history to avoid public stigmas.
“It is often said that we are a nation of laws and not men,” said Barbara McQuade, a former federal prosecutor for Michigan’s eastern district who now teaches law at the University of Michigan. “Trump seems to want us to be a nation of one man – Trump.”
McQuade added that what happens with “pardons for the Jan[uary] 6 defendants, Smith’s report on Trump’s retention of classified documents, and Trump’s call for revenge prosecutions will reveal whether the rule of law maintains its integrity”.
McQuade cautioned: “By promising to pardon the Jan[uary] 6 defendants and framing as wrongdoers the law enforcement officials who investigated him, Trump is attempting to rewrite history. As his former attorney general, William Barr, so cynically put it: ‘History is written by the winners.’”
Other former prosecutors concur that Trump has a long track record of retaliating against political critics.
“Trump’s narcissism compels him to attack anything or any person who portrays him negatively,” said Ty Cobb, a former justice department official who worked as a White House counsel during Trump’s first term. “Trump is all for transparency when it comes to the conduct of his enemies, but obstructs transparency in any form when it applies to him.”
Other justice department veterans have raised concerns about the dangers to the judicial system posed by Trump’s drive to block the release of Smith’s report and his New York sentencing.
“We shouldn’t be surprised at the unrelenting efforts by Trump to escape accountability for his conviction in the New York case,” said the former justice department inspector general Michael Bromwich. “That is what he does. But it is nothing short of mortifying that he came within one supreme court justice of nullifying the New York verdict.”
Bromwich said that the release of Smith’s election subversion report is “a pale substitute for a public trial, but a form of political and historical accountability”. Ironically, he noted that a few of Trump’s lawyers who “tried to bury the report of the special counsel” have been tapped by Trump for top posts in his justice department, where their jobs “will be to defend the special counsel regulations. Their arguments should be an interesting line of questioning during their confirmation hearings.”
Critics notwithstanding, Trump has launched withering personal and political attacks against the New York judge who sentenced him, and against Smith.
Although Juan Merchan only sentenced Trump to “unconditional discharge” with no jail time or probation, and allowed him to appear remotely at the hearing, Trump trashed the whole case against him.
“It was done to damage my reputation so I would lose the election, and obviously that didn’t work,” Trump said.
A week earlier, when Merchan announced the 10 January sentencing date, Trump lashed out, calling him “corrupt”, on his Truth Social platform, despite recent strong public warnings from the supreme court chief justice, John Roberts, who, without mentioning Trump, decried mounting threats against judges and the judicial system.
And in apocalyptic fashion, Trump said the judge’s decision to sentence him “would be the end of the presidency as we know it”.
In a similarly conspiratorial and false vein before the release of Smith’s election subversion report, Trump attacked him on Truth Social last weekend, writing that “deranged Jack Smith was fired today by the DoJ”. Trump later endorsed and expanded an online post stating Smith should be “disbarred” and “ indicted”.
Such attacks have prompted legal critics to sound more alarms about Trump’s repeated threats to seek retribution against his political foes and to issue large-scale pardons when he assumes the presidency.
“It is a fundamental principle of our criminal justice system that we do not prosecute for the purpose of retribution,” said the former federal judge John Jones, who is now the president of Dickinson College. “Nor should charges be brought selectively,” stressing that these are “bedrock precepts”.
Likewise, Jones defended the fairness of the legal system that has led to 1,500 convictions and guilty pleas by January 6 defendants.
“Those who were prosecuted were given almost excessive due process,” he said, adding that blanket pardons would “signal to future insurrectionists that they can engage in violence impeding the operation of the government with impunity”.
Legal watchdogs, too, are concerned about Trump’s promised pardons.
“President Trump’s plan to pardon the January 6 attackers signals his intent to abuse his power. Pardoning loyalists for political violence is an action of an autocrat serving his own ends,” said Adav Noti, the executive director of the non-partisan Campaign Legal Center.
Similarly, Bromwich warned of serious fallout if Trump “follows through on his pledge to pardon the January 6 insurrectionists, including those who assaulted police officers. If he does, it will be the most consequential abuse of the pardon power in American history.
“All the work of prosecutors, agents, judges and juries who were involved in those legitimate prosecutions will be for nought. Justice department officials who stand for the rule of law should do everything in their power to prevent it.”
The former federal prosecutor Daniel Richman, who now is a law professor at Columbia University, said he saw public benefits with Trump’s sentencing and the release of Smith’s election subversion report.
Richman said both “will be markers for history. Trump is now a convicted felon, the first to serve as president. And Smith’s report has laid out an account of criminal wrongdoing that only Trump’s successful delaying tactics prevented Smith from having a chance to prove up in court. Whether these are just time capsules or small moves toward accountability remains to be seen.”
