Early this morning, the Department of Justice released the report of Special Counsel Jack Smith on his investigation of Donald Trump’s attempt to overturn the result of the 2020 presidential election—closing the saga of the U.S. criminal-justice system’s effort to hold the coup instigator accountable. No prosecution will now take place. Compared with the present outcome, it would have been better if President Joe Biden had pardoned Trump for the January 6 coup attempt.

A pardon would at least have upheld the theory that violent election overthrows are wrong and illegal. A pardon would have said: The U.S. government can hold violent actors to account. It just chooses not to do so in this case.

Instead, the special counsel’s report delivers a confession of the helplessness of the U.S. government. Smith asserts that the evidence was sufficient to convict Trump of serious crimes—and then declares the constitutional system powerless to act: The criminal is now the president-elect, therefore his crime cannot be punished.

The report suggests that if the law had moved faster, then Trump today would be a convict, not a president. But the law did not move fast. Why not? Whose fault was that? Fingers will point, but the finger-pointing does not matter. What matters is the outcome and the message.

Trump swore to uphold the Constitution in January 2017. He violated that oath in January 2021. Now, in January 2025, he will swear it again. The ritual survives. Its meaning has been lost.

In 2022, a prominent conservative intellectual proclaimed that the United States had entered a “post-constitutional moment”:

Our constitutional institutions, understandings, and practices have all been transformed, over decades, away from the words on the paper into a new arrangement—a new regime if you will—that pays only lip service to the old Constitution.

That conservative was Russell Vought, one of the co-authors of the Heritage Foundation’s Project 2025 policy plan, and now President-Elect Trump’s choice to be director of the Office of Management and Budget, which controls and coordinates all actions by the executive branch. The post-constitutional moment that Trump supporters once condemned has now become their opportunity. They have transgressed the most fundamental taboo of a constitutional regime, the prohibition against political violence, and instead of suffering consequences, they have survived, profited, and returned to power.

If anything, the transgression has made them more powerful than they otherwise would have been. Bob Woodward gives an account in his 2018 book, Fear, that Gary Cohn, Trump’s chief White House economic adviser, thwarted his intent to withdraw from NAFTA and the U.S.–South Korea trade agreement by snatching the notification letters off the president’s desk. The story suggests something important about the difficulty Trump had imposing his will during his first term. But for his upcoming second term, Trump has made defending his actions in 2021 a test of loyalty. In December, The New York Times interviewed people involved in recruiting for senior roles in the Trump Defense Department or intelligence agencies; several of them had been quizzed about whether Joe Biden won the 2020 election and whether Trump did anything wrong in his challenge to the election on January 6. The clear implication was that to answer anything but No and No would have been disqualifying. There will be no more Gary Cohns, only J. D. Vances who will deny the last election and defend Trump’s actions to overturn it.

That is what a post-constitutional moment looks like.

Before Trump, American law was quite hazy on the legal immunity of the president. In 1982, the U.S. Supreme Court ruled that a president could not be sued for his official acts. In 1997, the Court ruled that a president could be sued for personal acts unrelated to his office. Both of these rulings applied only to civil cases, not to criminal ones.

For nearly 250 years after the adoption of the U.S. Constitution, the question of the president’s rights under criminal law did not arise. Trump’s proclivity for wrongdoing forced the question on the country: Was a president of the United States subject to criminal law or not? Last year, the Supreme Court delivered a complex mess of an answer, whose main holding seemed to be: Here’s a complex, multipart, and highly subjective set of questions to answer first. Please relitigate each and every one of them, while we wait to see whether Trump wins or loses the 2024 election.

Now comes the Smith report with its simpler answer: If a president wins reelection, he has immunity for even the worst possible crimes committed during his first term in office.

The incentives contained in this outcome are clear, if perverse. And they are deeply sinister to the future of democracy in the United States.

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Over the next several days, many of Donald Trump’s Cabinet selections will appear before the Senate for confirmation hearings. By putting forth a series of unqualified candidates who, in other political moments, would likely not have made it this far, Trump has muddled the process before the hearings have even begun: As my colleague David Graham put it in November, “the sheer quantity of individually troubling nominees might actually make it harder for the Senate to block any of them.”

But the outcome of the Senate confirmation hearings is not a foregone conclusion. Yes, Senate Republicans have shown that they are reliably deferential toward Trump (though some drew a line at his selection of Matt Gaetz for attorney general). Many of his picks will be easily confirmed, my colleague Russell Berman, who covers politics, predicted, given the Republicans’ 53–47 majority in the Senate. But with the current makeup of the Senate, each pick can afford to lose only three GOP votes (assuming that every Democrat opposes the nomination), so for the ones who have yet to lock in support from every single Republican, the hearings could make the difference. Democrats, Russell explained to me, will attempt to use the hearings to build a case for the public that some of Trump’s nominees “are either unqualified or don’t reflect the views and values of most Americans.”

Among the first hearings is one that will reveal whether even a few Republicans are willing to defy the president-elect. Tomorrow morning at 9:30 a.m. EST, Pete Hegseth, a former Fox News host and Trump’s nominee to lead the Department of Defense, is scheduled to appear before senators. They will have much to ask him about, including Hegseth’s confirmation that he reached a financial settlement with a woman who accused him of sexual assault (though he has denied the assault allegation), accusations that he is prone to excessive drinking (he has denied having a drinking problem, and one Republican senator has claimed that Hegseth told senators that he has stopped drinking and won’t drink if confirmed), reports of his failures in leading veterans’ organizations and forced departures from those roles (which Hegseth’s camp called “outlandish claims”), and his suggestion that women shouldn’t serve in military-combat positions.

Democrats have already hammered him on these issues: Senator Elizabeth Warren released a scalding 33-page letter last week outlining questions about his fitness to serve. Republicans have also scrutinized Hegseth and other nominees, although none has yet said publicly that they would vote against any of Trump’s picks. Russell advised that in addition to the Republican moderates Senators Lisa Murkowski and Susan Collins, GOP senators to keep a close eye on throughout the hearings include Senator Mitch McConnell, who is somewhat liberated from total deference to Trump because he’s no longer leader of the party, and Senator Bill Cassidy of Louisiana, who voted to impeach Trump after January 6.

Not every pick has a hearing scheduled yet—RFK Jr., Kash Patel, Tulsi Gabbard, and others are not yet on the calendar. In recent decades, just one Cabinet nomination (John Tower, George H. W. Bush’s pick for secretary of defense) has been voted down; others who faced tough odds have withdrawn—a path Hegseth or other nominees may follow if it seems likely they won’t win enough support. Gaetz, Trump’s initial pick to lead the Justice Department, bowed out shortly after being tapped, following an ethics-committee inquiry into allegations that included sexual misconduct and illicit drug use (Gaetz has denied any wrongdoing).

Senators from both parties have pushed to see FBI background checks that, although not legally required, have been customary for a president to mandate (the agreement that Trump’s transition team signed with the DOJ did not specify whether he will require FBI involvement for his picks). Trump and his supporters have for years been attempting to damage the reputation of the FBI, and now some, including Elon Musk, are suggesting that anything the agency digs up won’t be credible. That posture, Russell explained, is another tactic to “speed up the confirmation of nominees whom the Senate might have rejected in an earlier political era.” In an effort to get their way, Trump’s allies seem poised to cast doubt on the whole process, encouraging Americans to mistrust another long-standing government norm. That legacy could last longer than Trump’s second term.

Related:

Donald Trump’s most dangerous Cabinet pick The perverse logic of Trump’s nomination circus

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Today’s News

Winds are expected to pick up across parts of Los Angeles and Ventura counties, according to the National Weather Service. The wildfires in Southern California have killed at least 25 people, according to the Los Angeles Times. Federal Judge Aileen Cannon allowed the release of a portion of a report written by former Special Counsel Jack Smith about the 2020 election-interference case against Trump. President Joe Biden announced that student loans will be forgiven for more than 150,000 borrowers.

Dispatches

The Wonder Reader: Everyday decisions can accumulate into a life of isolation, Isabel Fattal writes.

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Evening Read

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The Easiest Way to Keep Your Friends

By Serena Dai

The hardest part about adult friendship is, by far, scheduling time to see one another, especially when trying to plan for a group. Thursday’s bad for one person, and Saturday’s not good for another. Monday would work—but hold up, the restaurant we want to try isn’t open that day. Let’s wait a couple of weeks. Somehow, though, the day never comes. Your friends forgot to follow up, or maybe you did. Either way, can you even call one another friends anymore?

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Stephanie Bai contributed to this newsletter.

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