If you were to time travel to 2023, and start telling people that President Donald Trump’s Department of Justice would soon try to imprison a woman who had accused him of rape, most would likely dismiss it as a concept of #weirdresistance.
However, now it seems like a reality. Reporting in both CNN and New York Times suggests that the DOJ has opened a criminal investigation into E. Jean Carroll, the journalist who successfully won 88.3 million dollars as compensation from Trump after federal judges decided to sexually abuse her in 1996 and later he defiled her. The allegation now under investigation, according to reports, is that Carroll committed perjury during the filing of the lawsuit.
This, of course, is an abuse of authoritarian power: the president using the Justice Department as a weapon to go after one of his most prominent and staunch critics. It’s the kind of thing you expect in a country like that Turkey or Venezuelawhere the justice system has been transformed into a mechanism for the implementation of authoritarian rule.
But the comparison also suggests why the case is less frightening than it seems.
Unlike those countries, where those targeted by the government have little chance to defend themselves, Trump’s record of prosecuting his opponents has been abysmal. Due to a combination of the incompetence of its lawyers, the court system, and the true independence of America’s lower court judges, they have repeatedly failed to convict – much less imprison anyone.
The administration has repeatedly failed to present a credible case against former FBI Director James Comey, and his latest indictment is concerning. a supposedly terrifying image of a seashell. In February, a grand jury rejected both of his efforts to prosecute six Democratic congressmen through a video calling on the US military to disobey illegal orders. A criminal investigation into then-Federal Reserve Chairman Jerome Powell clashed with senators who threatened to impeach him instead. it was later discontinued. Just this week, federal judges dismissed both lawsuit against anti-ICE protesters in Chicago and administration the latest effort to arrest Kilmar Abrego Garcia.
“They seem to be picking targets without evidence to support convictions,” says Barb McQuade, a law professor at the University of Michigan and a former U.S. attorney. “In Carroll’s case, the jury has already spoken to his credibility, and they believed him. It’s absurd to think that prosecutors could have reached a different result when at this point the government, and not him, has the burden of proof, and at the highest level of guilt beyond a reasonable doubt.”
This diagram shows one of the central movements of the Trump administration more than the previous year: that they have a clear intention to build an authoritarian government, but lack the ability and strategic vision to overcome the institutional obstacles of American democracy for a real consolidation of power.
And with the midterm elections looming, they’re running out of time.
Because Carroll’s investigation is a hoax
In September 2020, Carroll’s lawyer told him that an outside source was helping fund his lawsuit against Trump (that source was Reid Hoffman, a major Democratic donor). More than two years later, during a trial, Carroll was asked if anyone was “now paying” his legal fees — and he said no.
The Justice Department lawsuit, according to CNN and the Times, focuses on the theory that Carroll’s answer was false: that he knowingly lied in 2022 about the 2020 funding.
There are many problems with this theory, but the biggest one is that the court has it’s already decided this question on behalf of Carroll.
“Ms. Carroll strongly represented that she had forgotten about the small outside funding attorney found in September 2020 when this question was first raised in 2022, and additional discovery did not show otherwise. Rather, it showed that Ms. Carroll was not just involved in the matter of who was or was not funding her litigation expenses,” The Second Circuit issued a unanimous decision rejecting appeals from Trump.
And the burden of proof would be much higher in a criminal case, which is what federal prosecutors are reportedly pursuing. The Justice Department would need some kind of smoking gun evidence that Carroll had knowingly lied about the funding, and there is no reason to believe that any such evidence exists.
“A conviction is unlikely,” McQuade concludes.
That the Justice Department can even bring such a flimsy case is, in his estimation, evidence of how broken the process is. Trump’s lawyers should know that this case, like the repeated attempts to impeach Comey, is going nowhere legally — but they are filing it because the president wants his opponents impeached and publicly humiliated.
“Typically, DOJ policy prohibits prosecutors from prosecuting cases simply because they have probable cause. The standard is that prosecutors have to believe there is a possibility that the evidence is sufficient to obtain and pursue a conviction,” McQuade says. “Filing criminal charges simply to embarrass someone without evidence to support it is a violation of ethical standards and an abuse of the Department of Justice’s authority.”
The wages of “haphazardism”
One could, theoretically, read Carroll’s case in two opposing ways.
One could, given the fundamental wrongness of bringing the case in the first place, see it as evidence of the damage Trump has done to America’s democratic institutions. One might also focus more on the very high probability that the case will fail, and take it as evidence of the resilience of American democracy in the face of an authoritarian executive.
These views are not opposed, however, but in fact two sides of the same coin. The Trump administration’s vision for a second term is best described as “haphazardism,” a style of governance characterized by frequent and sustained individual attacks on the American system of government that are legitimately dangerous, but also so poorly executed that they are often self-deprecating.
Trump succeeds in destroying elements of the American system: destroying the separation of powers and principles of neutral governance which defined modern American civil service. But the crash isn’t complete — Trump hasn’t demolished every obstacle that stood in his way to unfettered power — which leaves democracy intact, if greatly reduced in quality.
Carroll’s case fits this pattern exactly. Trump has succeeded in breaking the norm of DOJ independence that, in the post-Watergate era, would have prevented a president from retaliating against a woman who testified in court that she assaulted him. However, he has not been able to take the next step, that of Erdogan or Putin, and turn the court into a rubber stamp that would translate charges into convictions.
This is because of the speculative nature of the Trump administration. More concerned with visuals, and less attention to long-range planning, Trump demands that people immediately do what he wants – and hires the right people to do it. He has no real plan for long-term consolidation of power, a way to turn individual prosecutions into a real effort to capture political opposition. He just wants a charge, and so he gets it – regardless of legal capacity.
Few good lawyers are willing to follow this type of law, and it has shown. In recent articlesAlan Feuer of the New York Times chronicled a series of extraordinary events by Trump’s DOJ that have resulted in an unprecedented number of grand juries, long seen as rubber stamps for federal prosecutions, failing to indict. Feuer sees this failure as a direct result of Trump’s drive for political revenge: The more small and poorly argued cases he brings, the more chief justices and judges have come to expect small and poorly argued cases, and the more confident they are in rejecting them.
Trump’s efforts to prosecute his enemies are simultaneously authoritarian in intent and weak in execution. Understanding this as an example of a general pattern of chance helps explain what Trump is doing to the American system of government — and how far-reaching the consequences will be.
