Why Trump is on the verge of the presidency, and not in jail.

History awaits!

While contemplating this depressing binary in the race’s final days, I’ve been thinking about how we got here. There are, of course, many answers to that, but the one I’ve been thinking about the most is what the criminal justice system’s role is in our current predicament. Did that system—the one tasked with keeping the public safe but seemingly unable to serve consequences to one man—fail the American people? Or are we on the precipice of failing ourselves by reelecting this guy, despite the hard work of decent, well-meaning public officials and line attorneys who manage the complex, grinding machinery of American law?

I’ve ping-ponged between these two perspectives, but on the eve of this election, I think I figured out the answer: Over and over again the systems tasked with protecting the public from a dangerous criminal like Donald Trump opted for the route of appeasement, which is a big reason we are on the precipice of reelecting a man who threatens to end the system of democracy that Americans have known for nearly 60 years. At the same time, the law has exposed enough of Trump’s obvious criminality that we will only have ourselves to blame for the inevitable consequences if we hand Donald Trump—a man who has promised violence against his political enemies and mass deportations of some of the most vulnerable people in this country—absolute, unchecked power. Blame the system and the voters!

Criminal law has been nipping at Trump’s heels for years. To start, there are the many, many allegations of sexual assault over the course of decades—one of which is E. Jean Carroll’s claim that he assaulted her in a department store in the 1990s, for which the law did find him liable. Many of these cases were reported years after they happened and were never investigated by authorities, but it’s hard not to believe them given the sheer number of credible claims and the fact that this is a man who has been secretly recorded bragging about assaulting woman.

Sexual assault allegations are not the only area where Trump has gotten off easy. Consider the Manhattan district attorney’s 2012 criminal investigation of Trump and his children Donald Jr. and Ivanka for housing fraud. According to reporting in the New Yorker, “Vance overruled his own prosecutors” and called off the investigation after Marc Kasowitz—Trump’s attorney and a Vance donor—reached out to Vance personally. These are not even the only Trump financial misdealings for which he evaded meaningful scrutiny.

Then there are the crimes Trump has committed since his rise to political power. First, there was extensive evidence that Trump obstructed justice in 2017 to prevent a full accounting of his dealings with Russia during the 2016 election and transition period. While that evidence was laid out in the Mueller report, contrary to the wishes of some of his top prosecutors, special counsel Robert Mueller refused to formally allege that Trump had obstructed justice. Nor did he use his full subpoena powers to look into Trump’s finances. “The proof is so overwhelming that he obstructed justice, but we don’t actually come out and say that,” Mueller prosecutor Andrew Weissmann has said. “I think the American public frankly, there was a bit of a disservice to them because we weren’t being very clear about what we had concluded.” There were never any consequences for these crimes.

Then there’s the 2019 Ukraine extortion scheme, for which Trump was impeached in the House … but ultimately acquitted in the Senate. Despite a vigorous effort of the House Intelligence Committee, investigators were eventually stymied by Trump’s refusal to cooperate with supposedly compulsory subpoenas. Trump’s Department of Justice, under Attorney General William Barr, swept the entire matter under the rug without an investigation, and Trump’s allies in the Senate helped him evade a single witness testifying at trial. Then, they voted to acquit.

Then there are the crimes he committed that prosecutors finally did decide to charge that have yet to be taken to trial. The primary of these are the election theft and Jan. 6 Capitol assault cases in D.C. and Fulton County, Georgia, neither of which was able to go forward before November. The Georgia case stalled due to Fani Willis’ personal missteps. The D.C. Jan. 6^th case seems to have been sufficiently derailed by the Supreme Court’s ruling granting Trump and future presidents virtually unchecked immunity for crimes they commit while in office. Meanwhile, in the Mar-a-Lago stolen classified documents case, prosecutors drew a Trump-appointed judge willing to go to any and every length to protect her benefactor, up to and including dismissing the case on a novel and concocted theory about the illegality of special counsels themselves.

It’s certainly notable that the sabotage of Trump-appointed judges and justices played a key role in these cases. But, at least in the federal cases, there was another issue at play: Attorney General Merrick Garland’s decision to wait until the last possible moment to move forward with a special counsel appointment and ultimately indictments.

According to reporting in the Washington Post, prosecutors in the Department of Justice were prepared to start looking at Trump as early February 2021, in the immediate aftermath of the Jan. 6 assault on the Capitol building and Trump’s attempt to overturn the election. During deliberations, though, DOJ officials “acknowledged the political risks” and ultimately decided to go after low-level rioters before looking at anyone in Trump’s orbit. The DOJ refused to look at Trump’s fake electors scheme for a full year, until Michigan Attorney General Dana Nessel referred the matter to the department. The investigation only truly started to home in on Trump himself after public pressure mounted following the bipartisan House Jan. 6 committee’s investigation yielding a trove of testimony about Trump’s damning behavior that day and leading up to the Capitol riot.

The DOJ will deny it to the end, but it seems clear that Garland was not willing to go there before 2022 because there was a perception that  the law had Trump in a box following his plunge in popularity after the insurrection. The reason for the delay had been worry over exposing our country to the unpredictable consequences of prosecuting a former president. There was a legitimate fear that doing so would carve the way for future “banana republic–ing,” as former DOJ prosecutor Frank Bowman put it to me, i.e., government entities inappropriately prosecuting political enemies down the line. But now, with the benefit of hindsight, Bowman thinks that Garland waited too long, given the foreseeable procedural hurdles to any prosecution of this complexity and Trump’s unmatched ability to challenge such a case. “Perhaps the criticism you can make is that he dithered too long in making that decision, given what he and his experienced advisers surely knew, which is once you decide to do that, it’s not going to be a quick process,” he told me.

Then there was the classified documents case, which Bowman called a “slam dunk,” but which Garland also delayed. Two years ago, I wrote that this decision to delay that prosecution and appoint a special counsel would only benefit Donald Trump. Now, we know that the decision to appoint a special counsel would be the basis for Judge Aileen Cannon’s decision to dismiss the case.

Finally, there’s the one case that did actually make it to trial: Trump’s Manhattan conviction for violating election and fraud law in his scheme to pay off Stormy Daniels to keep her story of an affair quiet prior to the 2016 election. Even in that case, though, Trump may evade accountability, as the sentencing was delayed from June to mid-September to Nov. 26 in response to the Supreme Court’s immunity ruling. If he wins the election, it’s near impossible to imagine the sentencing going forward. Even if he loses, the case could still be caught in a procedural hell brought on by the Supreme Court’s immunity ruling. That felony conviction itself seems to have done little to nothing to staunch Trump’s appeal to the public, as those of us who were in the room for the trial have struggled to convey the depth of the evidence for Trump’s criminality to the general public.

Surely, there’s a lot on this side of the ledger for the failure of the legal system, from Merrick Garland on down to line prosecutors in every jurisdiction where Trump’s crimes were committed. On the other side of the ledger, though, is a simple truth: Americans know all about his crimes and it really does not seem to matter to some 50 percent of us. “We thought somehow that there was something special—better informed, more virtuous, more something—about Americans as opposed to everybody else in human history,” Bowman noted. “And it turns out we’re wrong.”

Ultimately, there is no binary. Voters have the information they need to judge Trump’s criminality as they head to the polls and might make the wrong choice anyway. Yet, the law did not do enough to protect the country. It could have done more, faster. It could have given us more information and brought Trump’s crimes to light quicker and more fulsomely. It could have locked him up.