President-elect Trump meets President Biden in the Oval Office.

Donald Trump’s victory on Tuesday was not just an electoral success but a triumph over the legal system. In the years since reluctantly leaving office in 2021, he has been dogged by four separate criminal prosecutions for his various abuses of power before, during, and after his first term as president. Securing a second term was the simplest way to bring these prosecutions to an end, and now his path to doing so is clear—mostly.

That the country is even facing these questions is evidence of the novel—and frightening—position it now finds itself in. Trump has made history as the first person ever to be elected president with a felony record, having been convicted by a New York jury in May, but not yet sentenced. Additionally, he has been indicted in three other cases in both state and federal court, though these cases have not yet made it to trial, and now may never. An apparent majority of American voters decided that these charges, the bulk of which speak directly to Trump’s willingness to abuse the powers of the presidency and his refusal to acknowledge that the law might apply to him, were not disqualifying when they made their selection for the nation’s highest office. And now, because of their decision, Trump has won the impunity he so craved.

The federal cases are done for. The day after the election, reports began to surface that Special Counsel Jack Smith was already in conversation with the Justice Department about bringing his two prosecutions of Trump—one over his hoarding of classified documents, and one over his efforts to unlawfully hold on to power following the 2020 election—to an end before Trump swears the oath of office for a second time on January 20. If for any reason that doesn’t happen, Trump can simply order those cases dismissed—the Department of Justice answers to the president, after all. The state cases, over which Trump has no such power, are somewhat more of a puzzle. In no instance, however, is the answer satisfying for anyone who cares about seeing Trump brought to justice.

[Conor Friedersdorf: Treat Trump like a normal president]

Both of Smith’s cases had already been seriously weakened—particularly the charges concerning the classified documents. That case should have been the most straightforward. Trump appears to have blatantly ignored the law in taking classified materials with him after leaving office, and then refusing to hand that material back to the federal government when the FBI came knocking. But Smith got extremely unlucky when the case was randomly assigned to  the Trump-appointed Judge Aileen Cannon, who has been hamstringing the prosecution ever since with absurd delay after absurd delay. In July, she capped this off by dismissing the charges altogether, on the legally dubious grounds that Smith had been unconstitutionally appointed. Smith has appealed, leaving the documents case in limbo while the U.S. Court of Appeals for the Eleventh Circuit weighs the arguments.

The other federal case concerns the president-elect’s failed attempt to unlawfully hold on to power after his loss in 2020. In court in Washington, D.C., prosecutors were stopped in their tracks for months while the Supreme Court considered what sort of presidential acts are immune from criminal prosecution. In July, the Court ruled that presidents enjoy extensive immunity for so-called official conduct. Following that, Judge Tanya Chutkan was tasked with figuring out which aspects of the charges might be salvageable, as Trump argued that the entire prosecution should be dismissed because of his newfound immunity. Smith has used the resulting back-and-forth as an opportunity to release material capturing Trump’s culpability: Most damningly, a filing by Smith states that when Trump was alerted on January 6 that a mob of rioters had broken into the Capitol and that then–Vice President Mike Pence’s life was in danger, he responded, “So what?”

Now, with Trump poised to reenter the Oval Office, the January 6 case will never make it to trial, and the Florida prosecution of Trump will never be resurrected. The only question is what precise sequence of events will lead to that outcome. Smith may be aiming to have both cases dismissed before Trump once again resumes the presidency, “to comply with long-standing department policy that a sitting president can’t be prosecuted,” NBC first reported. The reasoning behind Smith’s reported conversations with the Justice Department is not entirely clear: Is the thinking that a trial will never come to pass, so it’s better to simply wind things down now? Or is it that the Justice Department’s prohibition on prosecuting a sitting president somehow also forbids moving forward with a prosecution of a president-elect?

Either way, this approach looks a lot like admitting defeat. The alternative would be for Smith to fight to the end and keep moving forward with the cases until Trump takes office, daring the new president to shut them down.

Such a confrontation could play out in a number of ways. Trump declared in October that he would “fire Smith in two seconds” after coming into office. He could make good on that threat and then order the Justice Department to drop the cases. Or he might even take the constitutionally untested step of pardoning himself. Whatever option he chooses, forcing him to take such a step would make obvious the magnitude and impropriety of Trump’s actions: a president abusing his authority to evade criminal accountability for his own wrongdoing. For all of Trump’s battles with the law, he has never tried to so directly quash a case against himself, even during the Mueller investigation. No president ever has.

When Richard Nixon tried to suppress the Watergate investigation, in 1973, setting in motion a series of Justice Department resignations during the “Saturday Night Massacre” until he managed to dismiss Special Prosecutor Archibald Cox, the ensuing political inferno ultimately led to the end of Nixon’s presidency. There is not the slightest possibility that a dismissal of Smith and of the cases against Trump would have the same outcome—the erosion of political norms over the course of the first Trump presidency has seen to that. But there is still some power in letting Trump write himself into history this way.

The counterpoint, such as there is one, is that winding these cases down before Trump enters office might allow for a fuller public accounting of what exactly the once and future president has done. The Justice Department regulations under which Smith operates provide that, upon completing an investigation, the special counsel must provide a report of his work to the attorney general—who may “determine that public release of these reports would be in the public interest.” That’s the provision under which Robert Mueller wrote his famous report. But the Mueller report was delayed in its release thanks to political chicanery by Trump’s Attorney General Bill Barr—and likewise, there’s no guarantee that a Trump-selected attorney general or acting attorney general would lift a finger to release any Smith report. If Smith wraps up under the Biden administration, in contrast, it’s far more likely that the special counsel might be able to release a final accounting of Trump’s deeds to the public.

[Arash Azizi: Don’t give up on America]

The twist, of course, is that it’s hard to imagine that the same public that just elected this man to the presidency would care. At this point, it’s a truism to say that the legal system is not designed to deal with a criminal president or former president, and that the only solution was a political one—to vote him out. Well so much for that, too. What’s more, Trump will enjoy even greater impunity during his second term, thanks to wording in the Supreme Court’s immunity ruling that seems to sharply limit the ability of any future special counsel to investigate a sitting president—if, that is, the special-counsel system survives Cannon’s ruling.

So that’s it for the federal cases. The state prosecutions represent a somewhat more complicated problem, simply because there’s no easy way for Trump to cleanly do away with them. The president has no authority over state criminal cases. Still, the prognosis is not much better.

In Georgia, the ungainly Fulton County prosecution of Trump and 18 other co-defendants for their effort to steal the 2020 election has been stalled since this summer, following a baffling scandal over the personal conduct of District Attorney Fani Willis. This July, a judge placed the case on hold while Trump pursued Willis’s disqualification from the prosecution—a matter that will come before the Georgia Court of Appeals in early December. If that court agrees that Willis is disqualified, another Georgia prosecutor would be appointed to the case, and would have the option of continuing to pursue the prosecution or dropping it entirely. That may be the end of the case right there.

If Willis survives the litigation, or if her replacement decides to move forward, whoever is leading the case will immediately run into two interrelated problems. The first is the very same Supreme Court immunity decision that has bogged down the federal case. Although that ruling directly concerned the federal charges against Trump over January 6, the conduct at issue in the Georgia indictment is substantially similar, and Trump would have strong arguments that the Court’s decision rules out some or all of the Georgia prosecution. The second problem is that, as the Justice Department has long held and as the immunity decision recognizes, there can be no criminal prosecution—even at the state level—of a sitting president. Trump would have no power to get rid of the case, but state prosecutors couldn’t proceed with it, either.

What then? Might prosecutors seek to somehow place the case on ice and unthaw it when Trump leaves office in 2028? “I think we are in an entirely uncharted territory,” Anthony Michael Kreis of Georgia State University College of Law, who has been following the Fulton County case closely, told me.

That leaves the New York case, in which Trump was already convicted on 34 felony counts in May. That verdict, which involved conduct unrelated to Trump’s official duties as president, should have been safe from the Supreme Court’s interference, but the Court contrived to meddle in the prosecution by inventing a bizarre rule largely prohibiting prosecutors from introducing evidence of official presidential acts, even when prosecuting unshielded private conduct. Trump immediately seized on this to argue that the verdict should be thrown out. As a result, his New York sentencing was delayed until after the election—it is now scheduled for November 26—and Justice Juan Merchan is set to rule on Trump’s immunity motion this coming Tuesday, exactly a week after the election.

Merchan once again finds himself in the unenviable situation of trying to work through how the law ought to apply to a particularly sui generis defendant. If the judge decides against tossing out the verdict and moves forward with sentencing, Trump’s defense lawyers may argue that sentencing should be put on hold until after Trump’s presidency. They could also seek to appeal any adverse immunity ruling in New York state courts and up to a potentially friendly Supreme Court. Trying to sort through what happens next requires traveling down the twists and turns of any number of fractals, but the bottom line is that the far-fetched scenario of a president being sworn in from the inside of a New York prison cell—always unlikely—is not going to occur.

All of this places Merchan in a very strange position. “Obviously the court is trying to proceed as if this is any other case, but it really isn’t,” Rebecca Roiphe, a former prosecutor in the Manhattan district attorney’s office and a professor at New York Law School, told me. But, she said of the New York case and the other Trump prosecutions, “from a perspective of the rule of law, it’s really important to follow it through to the end—even if in the end, it fizzles out.”

[Thomas Chatterton Williams: What the left keeps getting wrong]

Besides Trump, other defendants who participated in his various schemes now have new hope of reprieve. Across the country, state cases outside the president’s control are moving forward against people involved in the 2020 fake-electors plot. Will the new administration attempt to leverage threats or political pressure to push state prosecutors to drop these charges? In Florida, Trump has two co-defendants, men who allegedly helped him hide classified documents from the FBI. Will he pardon them as well? What will happen to the five unindicted co-conspirators whom Jack Smith lists as aiding Trump’s unlawful effort to hold on to power in 2020—might Smith recommend charges against them as well, perhaps forcing Trump to pardon them? Or will they slip away?

And then there are the other January 6 defendants—the people who broke into the Capitol on Trump’s command, and whom he has repeatedly indicated he will pardon upon retaking office. Already, one defendant, Christopher Carnell, has unsuccessfully asked for his federal case to be halted, because he is “expecting to be relieved of the criminal prosecution that he is currently facing when the new administration takes office.” Lawyers for another defendant, Jaimee Avery, put the matter even more plainly in asking to delay her sentencing until after the inauguration: “It would create a gross disparity for Ms. Avery to spend even a day in jail when the man who played a pivotal role in organizing and instigating the events of January 6 will now never face consequences for his role in it.”

Legal arguments aside, they have a point. What moral logic is there to punishing rioters when American voters have decided to grant the instigator of the riot a free pass?

Donald Trump clinched victory in the 2024 U.S. presidential election, clearing the way for his return to the Oval Office. Meanwhile, Bitcoin briefly crossed $76,000 on Wednesday, setting a new all-time high. Additionally, the spot Bitcoin ETFs (exchange-traded funds)experienced significant inflows of $622 million…

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Donald Trump has clinched victory in the 2024 U.S. presidential election, marking a return to the Oval Office. Meanwhile, Bitcoin briefly crossed $75,000 on Monday morning, setting a new all-time high. The crypto community is buzzing, with celebrations sweeping across forums and social media, hailing Trump’s win as a…

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Everything about the staging of Kamala Harris’s “closing argument” rally Wednesday night on the White House Ellipse seemed designed to frame the upcoming election as a referendum on democracy. Flanked by American flags and surrounded by banners that screamed FREEDOM, the Democratic nominee delivered her speech against the same backdrop that Donald Trump used on January 6 when he addressed the crowd that went on to storm the Capitol.

“So look,” Harris said about halfway through her speech. “In less than 90 days, either Donald Trump or I will be in the Oval Office …”

Scattered shouts of You will! You will! echoed from the audience near the stage. In my conversations with Harris supporters afterward, their confidence seemed authentic. To a person, everyone I talked with believed they were on the verge of victory—that Harris would defeat the “wannabe dictator” once and for all, pull America back from the brink, and save the world’s oldest democracy from descending into facism.

Then I would ask a question they found dispiriting: What if she doesn’t?

It’s a question that’s been on my mind for months. We are in a strange and precarious political moment as a country: With four days left in one of the closest presidential races in history, supporters of both campaigns seem convinced that they are going to win—and that if they don’t, the consequences for America will be existential.

Trump and his allies have already clearly signaled what they will do if he loses: Claim victory anyway, declare the election rigged, and engage in another conspiracy to overturn the result, whether by litigation, extra-Constitutional arm-twisting, or even violence. The pressure campaign is unlikely to work; as Paul Rosenzweig noted in The Atlantic, none of the officials overseeing vote tabulation in battleground states is a partisan election denier. Still, this full-frontal assault on the validity of the election represents an ongoing threat.

If Harris loses, the response from her coalition would almost certainly be less dramatic and damaging; unlike Trump, she has committed to accepting the result. But as the election nears and panic over Trump’s authoritarian impulses reaches a fever pitch in certain quarters, I’ve begun to worry that prophecies of democratic breakdown following a Trump reelection could become self-fulfilling. What happens to America if Harris voters have fully internalized the idea that democracy is on the ballot, and then “democracy” loses?

In 2016, Trump’s surprise victory was met with a groundswell of small-d democratic energy. There were marches in the streets, and record-breaking donations to the ACLU, and waves of grassroots organizing. Subscriptions surged at newspapers committed to holding the new administration to account; books about combating tyranny became best sellers. The energy wasn’t contained to the liberal “resistance” movement. Conservative expats launched their own political groups and publications. As my colleague Franklin Foer recently wrote, the warnings of impending autocracy in America at the time “helped propel a spirit of loud, uncompromising opposition to Trump.”

That energy contributed to record-high turnout in the 2020 election, when Trump was defeated. To many people outside the MAGA coalition, Joe Biden’s victory represented a triumphant climax in the narrative of the Trump era. And had the one-term, twice-impeached president simply receded into a Mar-a-Lago exile, the story might have ended with a tidy civic moral: An aspiring authoritarian was vanquished in the most American way possible—at the ballot box. Democracy wins again.

But of course the story didn’t end there. And the fact that, four years later, Trump is within a coin flip of returning to the Oval Office has created some dissonance in liberal America. Trump has, in his third campaign, been more explicit than ever about his illiberal designs. He has talked about weaponizing the Justice Department against his political enemies, replacing thousands of civil servants with loyalists, and revoking broadcast licenses for TV networks whose news coverage he doesn’t like.

Democrats have sought to warn voters about the threat that these actions would pose to democracy—sometimes dialing up the rhetoric in an effort to wake Americans to the peril. But the messaging seems to have had an unfortunate dual effect, deeply stressing out voters already inclined to believe it while largely failing to resonate with the undecided and politically disengaged. Last week, The New York Times reported on a memo circulated by the leading pro-Harris super PAC warning Democrats that persuadable voters weren’t being moved by messages that focused on the former president’s authoritarianism. “Attacking Trump’s fascism is not that persuasive,” the email read. Compared with 2020, fewer Americans are telling pollsters that they are highly motivated to vote, or that this is the most important election of their lifetime.

Within a certain segment of Harris’s base, though, the struggle against autocracy remains very much top of mind. And if you spend too much time online monitoring the discourse, as I do, you might come away with the impression that, for many, Election Day will be the decisive moment in the battle for American democracy. Some liberals are even making plans to leave the country if Trump wins. Biden’s son Hunter recently told Politico he was worried that Trump’s reelection would mean “losing our democracy to a fascist minority” and warned that a second Trump term “is potentially the end of America as we’ve known it.”

I’ve heard similar sentiments from my most anxious Harris-voting friends and family members. And I’ve wondered whether another Trump victory would spur in them the same spirit of post-2016 activism or send them spiraling into fatalism and disengagement.

On Wednesday night, Harris was careful in her speech not to wallow too much in the doom and gloom of an imperiled democracy. But she did take aim at her opponent’s illiberalism. She said that Trump was “out for unchecked power” and warned that if elected, he would enter the Oval Office with an “enemies list.” She alluded to the country’s birth in revolt against a “petty tyrant,” and described Americans who have fought over centuries to defend and promote democracy around the world. “They did not struggle, sacrifice, and lay down their lives only to see us cede our fundamental freedoms, only to see us submit to the will of another petty tyrant,” Harris declared to cheers.

In my conversations after the speech, many supporters, teary-eyed and high on adrenaline as Beyoncé’s “Freedom” still blared from the speakers, were understandably loath to talk about what they’ll do next week if their candidate loses. But they politely indulged me.

Alyssa VanLeeuwen, a mom from Maryland who brought her eighth-grade daughter to the rally, emitted a guttural agghh when I posed the question to her. “Democracy is absolutely on the line,” she told me. A Trump victory, she said, would mean a bleak and uncertain future for her daughter. “I’m scared. I’m terrified if that happens.”

When I asked her if she thought that fear would translate to disillusionment or activism, she paused to give it thought. “I think,” she said, “everybody’s going to go to battle again to try to fight for their neighbors.”

I spoke with another Harris supporter who asked me not to use her name (“My family could be targeted”). She, too, called the prospect of Trump’s reelection “terrifying.” She said that Trump would herald “the return of McCarthyism” as he used federal power to root out and punish his political enemies, and went on to lay out in vivid detail the various worst-case scenarios of a second Trump term. But when I asked her whether she thought American democracy itself might be destroyed, she said no. “We have 300 million people in this country,” she told me, “and I don’t think we would allow that.”

This attitude was shared by almost everyone I spoke with that night on the Ellipse. Some of them told me about friends, glued to cable news and doomscrolling on their phones, who might tend toward fatalism if Trump wins again. But the people I met—the kind who travel long distances and wait outside in the cold for hours to attend political rallies—were not thinking of Election Day as a singular make-or-break moment. They seemed to know that, no matter who wins, America will still be a democracy next week, and the week after that. Its preservation depends, in part, on not pegging its fate to the outcome of any one election.

Before leaving the Ellipse, I met Salome Agbaroji, a 19-year-old Harvard student who had traveled from Cambridge to see Harris speak. As a poet, she spends a lot of time thinking about the language that shapes our politics, and she told me she resents what she considers hyperbolic rhetoric in the media about the end of democracy. A professor had recently taught her the root of the Greek word for democracy—demos, meaning “people,” and kratia, meaning “rule.” The power of the people doesn’t disappear overnight just because the White House is occupied by an illiberal leader.

“I don’t think democracy lives in an institution,” Agbaroji told me. “Democracy lives in the people.” As long as people hold on to “that spirit, it will be hard to kill.”