Richard L. Hasen and Dahlia Lithwick write:

The latest decisions out of the Supreme Court, first on when to hear former President Donald Trump’s immunity appeal, then on how to deal with his Colorado ballot disqualification, have made one thing very clear: We need to stop deluding ourselves that a majority of the Supreme Court sees the same political emergency that many of us do in terms of the threat Trump poses to American democracy. Whether it understood or even accounted for the consequences of the decision to delay the criminal case against him and to expedite its decision to keep him on the ballot, the high court ensured this past week that Trump is extremely unlikely to have a jury decide if he engaged in election subversion before voters cast their ballots for the next U.S. president this fall. After failures by outgoing Senate Minority Leader Mitch McConnell, Attorney General Merrick Garland, and now the Supreme Court, it’s clear that if anyone is going to save American democracy, it is going to be the voters.

To briefly recap how we got here: Trump engaged in a multipronged effort to turn himself from a loser in the 2020 presidential election into a winner by pressuring federal, state, and local officials to find “fraud” or “irregularities” that could serve as the basis to send in a bunch of fake electors to Congress. That might have provided a fig leaf for allowing Congress to ignore the will of the voters and subvert the election outcome by declaring Trump the winner. The plan failed. After Trump’s lies inspired a violent invasion of the Capitol on Jan. 6, 2021, Congress counted the real Electoral College votes, and Joe Biden was declared the winner. The House of Representatives impeached (again) Trump for his attempted election subversion (again), and 57 senators voted to convict, short of the 67 needed under the Senate’s rules. McConnell pointedly voted no, bringing others with him, arguing that the criminal and civil processes would take care of Trump.

That kicked the ball over to Garland’s court, where he did little—as far as the public is aware—for a long, long, long time. The Justice Department focused instead on the Capitol invaders, not the folks at the top who directed them or who participated in wider attempts to interfere with the peaceful and legal transition of power. Only belatedly did Garland appoint Jack Smith as special counsel to investigate these potential crimes, killing precious time that we all knew was ticking because Trump had said, early on, that he was going to run for president. By choosing to run, Trump put himself in a position to yell “Election interference!” as every charge was brought by a DOJ attorney headed by an appointee of his political rival. (Running also sets himself up for self-pardons or to scuttle ongoing federal cases if he wins the presidency again.) [Continue reading…]