Defeating Fascists Isn't Enough. We Need to Prosecute Them.

Holding the powerful accountable for their crimes is the only way out of this mess.

As we stumble through the smoking ruins of our democracy and gaze across the grotesqueries that stalk its burnt-out rubble—the incalculable corruption, the horrific wars of aggression, the point-blank execution of American civilians by federal goon squads—it’s only natural to search for the decision points that set us on this course. If I had to identify a single figure whose choices led us here, I’d be hard pressed to find a greater culprit than former Attorney General Merrick Garland.

Given everything that has happened since Donald Trump returned to power last January, you could hardly be blamed if you were unaware that Garland—who Barack Obama unsuccessfully nominated to replace Antonin Scalia on the Supreme Court and who served as Joe Biden’s attorney general—got a new job. It’s an old job, really: He returned to the corporate law firm Arnold & Porter, where he had previously been a partner, to work on focus areas including white collar defense.

White collar defense, which often involves helping the rich and powerful escape accountability, is also the best way to describe Garland’s tenure as attorney general, at least where it matters. While Garland’s DOJ immediately began to prosecute the lowest-level participants in Trump’s crimes against democracy—the foot soldiers of Jan. 6—Garland steadfastly refused to take on the architect of that insurrection, waiting almost three years to bring federal charges against Trump himself. Indeed, Garland only took action after Congress’s Jan. 6 committee essentially forced him to launch the prosecutorial effort he’d spent years resisting. By that time, it was—in the most predictable way imaginable—already too late. Trump was running for reelection, meaning he could cast his prosecution as political persecution. He would be reelected before the cases against him had any chance to be concluded. Where accountability mattered, Garland failed spectacularly.

This, and the resulting dystopian reality we are living through today, were not necessary or foregone conclusions. Another path was eminently possible, as a veritable pileup of international counterexamples demonstrates. Just this February, South Korea’s former president Yoon Suk Yeol was jailed for life for his imposition of martial law in December 2024. Last November, a Peruvian court handed down an 11-year sentence to former president Pedro Castillo for his attempt to dissolve Peru’s Congress in December 2022. And last September, Brazil’s highest court condemned former president Jair Bolsonaro to 27 years in prison for his efforts to overturn that country’s 2022 election results.

The Brazilian comparison is particularly instructive, because of the beat-for-beat similarities between Bolsonaro and Trump. Both are right-wing populists who falsely insisted they had won an election they had lost. Both used tactics of denial and conspiracy to inspire violent attacks against their respective capitols with the goal of blocking a democratic transition of power. But the paths of these authoritarian despots diverged sharply following their attempted coups. One is currently in prison. The other is back in control of the most powerful nation on Earth, waging an all-out assault on our Constitution that frankly makes the crimes of his first term look like child’s play.

Given this tragic sequence of events, it is not, I think, too soon for those of us opposed to Trump’s corrupt and cruel reign of terror—and in particular for our ostensible opposition party, whose leaders failed so utterly in their previous attempt to bring Trump to justice—to begin thinking seriously about what accountability for the crimes of this regime will look like if (and needless to say, it is a big if) Democrats are able to take back Congress and the presidency. Clearly, the Garland approach failed. What should replace it?

The only appropriate answer is the zealous pursuit of justice at every level of this criminal enterprise of an administration. The next Democratic administration should extend the Garland approach to January 6—a focus on the criminal foot soldiers of the Trump regime—to a host of other areas, most notably immigration enforcement, foreign policy, and corruption. But it shouldn’t stop there, as the response to January 6 did. It must go further.

Justice not only for the ICE and CBP thugs who murdered Americans in the streets, but also for the senior advisors and cabinet secretaries who sent those thugs on their campaigns of stochastic terrorism. Justice for the goons who will, it seems increasingly likely, seek to rig our upcoming elections, and the higher-level apparatchiks devising those antidemocratic schemes. Justice not just for the officials who executed double-tap strikes against civilians and bombed elementary schools and committed other startlingly barbaric war crimes, but more importantly, for the leaders who criminally launched such brazenly illegal military actions and wars. And, of course, justice for everyone inside and outside of this administration engaging in the most incomprehensibly flagrant looting of America’s public resources in our history.

Admittedly, all of this is a tall order. Pursuing accountability with such breadth and depth would require a serious commitment of resources, attention, and political capital. But it’s a necessary, not an optional, step towards rebuilding our democracy, which—even in this ideal future in which Democrats have overcome Trump’s efforts to dismantle free elections to win back temporary control of the government—will be overwhelmingly fragile for a long time to come. As the Allies understood when devising their denazification programs for Germany after World War II, America simply cannot afford to allow the bandits, propagandists, and sadists who’ve been running this administration to simply slide back into positions of power and privilege from which to plot their next fascist takeover. If Garland’s ignominious tenure as attorney general achieved nothing else of value, let it at least have taught us this lesson.

Of course, these prosecutions would be polarizing; in today’s political environment, there’s little that is not, though much of this administration’s conduct that merits prosecution enjoys supermajority levels of reprobation from the public. But a push for accountability, to succeed, will require a demonstration of popular support—in other words, a mandate. And that means it is incumbent on Democrats to make this fight for accountability a key part of their platform, starting now.

This will make many Democratic leaders squeamish. The party’s centrist establishment hates to take strong stances on just about anything. And there may be opposition from some on the left, as well. After all, doesn’t this “prosecute Trump” fixation risk dragging us back to a pre-2020 resistance liberalism that deprioritized material conditions and obscured the structural problems of oligarchy, of which Trump is really just a symptom?

Well, it could, if done poorly. But it could also buttress a much more powerful populist message, of the kind that Democrats desperately need to embrace if they are going to beat the diminished but still-potent right-wing populism of Trump and his MAGA heirs.

The word “populism” is thrown around a lot to describe very different political tendencies, in large part because populist anger can be channeled in polar opposite directions, towards fascism on the one hand or social democracy on the other. But at its core, populism is what you get when a critical mass of a society stops seeing the previous systems of political authority as legitimate. And there is nothing—literally nothing—that creates that perception of illegitimacy more than repeated demonstrations of elite impunity.

This dynamic is the foundation of our current political crisis. Indeed, elite impunity is what created Donald Trump, whose pledges to tear the system down triumphed twice against candidates who responded to his anti-system rhetoric by defending that system. In 2016 and 2024 Trump cast himself as an outsider who was being attacked precisely because he represented a threat to America’s political establishment and economic and cultural elite. For many, the alarm with which Trump was greeted only solidified this status. Finally, someone was promising to deliver some much-needed punishment to those who deserved it. In a world where regular people have watched again and again as rich assholes hollowed out their communities and denuded their lives and faced zero consequences for their crimes, Trump’s exhortation—“For those who’ve been wronged and betrayed, I am your retribution”—starts to sound pretty good. At least someone’s talking about retribution.

Obviously, that was never the reality of Trumpism, and today Trump’s administration stands as the ultimate monument to elite impunity. There are countless examples of how his regime has become a platonic ideal of the corrupt swamp, from the pardon-for-cash operation it has been running for wealthy criminals of all stripes, to the DOJ’s announcement that it simply won’t be prosecuting corporate crimes anymore. But the clearest narrative connecting Trump and elite impunity—indeed, the most intuitively understandable indictment of how our institutions have failed to hold elites accountable for their depravity—is the one that’s for months been flowing out of the millions of documents that make up the Epstein files.

It’s worth noting here that our old friend Merrick Garland sat on the Epstein files for four years without raising a finger to seek justice for Epstein’s victims or raise awareness about his accomplices, enablers, and associates—the latter group of which includes Epstein’s longtime friend Donald Trump, who sent him a pornographic birthday card referencing a “wonderful secret” that would “never age,” and who has been accused of trafficking and sexually assaulting a 13-year-old girl whom the FBI later found credible enough to interview four times.

Thanks to horrifying references like these, the Trump administration has become deeply entangled and, in the eyes of many voters, incriminated in the Epstein saga. And that means Democrats have an opportunity to develop a broader message of opposition to elite impunity—one that rightfully combines pledges to hold both Epstein’s associates and the Trump administration accountable for their wanton criminality. Because the truth is, these two groups are one and the same. As Georgia Senator Jon Ossoff aptly put it, “We were told that MAGA was for working-class Americans. But this is a government of, by, and for the ultra-rich. It’s the wealthiest cabinet ever. This is the Epstein class. They are the elites they pretend to hate.”

It’s a message Democrats can run—and govern—on. Remember the system you so despised, with its one set of rules for you and me and another for the wealthy and powerful? The system that let Jeffrey Epstein off with a slap on the wrist because he was rich and well-connected? The system that transferred teen sex trafficker Ghislaine Maxwell to a cushy minimum security prison where she reportedly is waited on hand and foot by prison officials and was given a puppy? Well, that’s the same system that’s been working to protect Epstein’s longtime friend Donald Trump and all his sycophantic deputies—like Trump’s Commerce Secretary, Howard Lutnick, a documented visitor to Epstein’s pedophile island—from being held accountable for their many crimes. And this time it’s the Democrats who are promising to burn that god-forsaken system of elite impunity down to the ground.

Of course, it would be madness at this point to trust the Democratic establishment—so long led by the likes of Bill Clinton, Reid Hoffman, and Larry Summers, each of whom spent years consorting with Epstein—to embrace this message. Thankfully, 2028 offers Democrats an opportunity to wipe the slate clean of their decrepitly complicit establishment.

This is one of the Democrats’ greatest advantages right now. As Marjorie Taylor Greene’s expulsion from GOP politics has demonstrated, taking on Epstein means taking on Trump, and no politician can become the next Republican presidential nominee by running against Trump. But our next Democratic nominee absolutely can—and must—commit to waging a war on the Epstein class, prosecuting its horrors, and rooting out the larger culture of elite impunity that is destroying our country from within. That promise not only gives Democrats a powerful populist message to run on—it also sets them up to demonstrate a real popular mandate, post-election, to bring the perpetrators of this regime’s horrific crimes to justice.

This January, Brazilian president Luiz Inacio Lula da Silva held a rally in front of a massive banner reading “Defense of Democracy.” He was there to veto legislation that Brazil’s opposition-controlled Congress had passed to lower Bolsonaro’s sentence from 27 to two years. After describing Bolsonaro’s attempted coup as a reminder that “democracy is not an unshakeable achievement,” Lula proclaimed, “In the name of the future, we do not have the right to forget the past.” Unlike Lula, America’s last Democratic administration failed to appreciate this essential truth. It is quite possible that this failure will prove lethal to our democracy. But if it’s not—if we are so fortunate as to have an opportunity to drive MAGA from power in 2026 and 2028—Democrats cannot be allowed to repeat their past mistakes. We must bring the architects of our current nightmare to justice—not in the name of the past, but in the name of the future.

This essay appeared in The New Republic, a great outlet you can also follow on Substack.

Oh, and one quick heads up! A couple very smart and entertaining friends and I are partnering with The Nation to release a new podcast at the end of the month—the Fighting Fascism Podcast—focused on the history of fascist takeovers, the conditions enabling them, the resistance movements that have defeated them, how we got to where we are today, and where we need to be going. We’ve got a few episodes already recorded that I’m actually really proud of. We don’t have an exact launch date, but I’ll be sure to let you know when we do!