Why Is The Most Thoroughly Evidenced Criminal Conduct In Modern American Political History Producing Exactly Zero Criminal Cases Against The People Responsible?
Diagnosing and Treating Democracy Rot
Action item up top: the ask is an email to your state attorney general today, requesting that the office “open an investigation into the Epstein files, identify any conduct documented that overlaps with the criminal statutes of your state, and share discovery with other state AGs where the evidence reaches conduct in their jurisdictions.” The directory of every state AG office is at naag.org/find-my-ag.
The question lands in my inbox often, in different words, from different people, in different states. Federal officials are committing documented crimes. Federal judges are writing it into formal opinions. Whistleblowers are testifying under oath. Inspector general reports are stacking up on the public record. State attorneys general and county prosecutors have the jurisdiction to charge these people under existing state statutes that no court has questioned. Every one of those messages is asking the same question, and the honest answer requires understanding what kind of failure we are looking at. The easiest way to see it is to think about a tree.
There is a disease that gets into the heartwood of a tree. The bark stays intact. The leaves still come in spring. From the sidewalk the tree looks fine, and people walk past it for years without noticing anything wrong. The inside has been eaten hollow. The structural wood that holds the weight is gone, replaced by soft pulp. You could punch through it with your fist. The first real storm takes the tree down, and when it falls everyone is shocked, because right up until it hit the ground it looked like a mighty tree rather than a hollow husk.
That is what is happening to the justice system. The bark is intact. The statutes are still on the books. Identity theft, computer trespass, official misconduct, bribery, conspiracy, racketeering, fraud, every tool a state prosecutor would need to charge a federal official for the conduct of the last sixteen months sits where it has always been, fully enforceable, waiting for someone to pick it up. The offices are staffed. The courts are in session. Prosecutors show up to work and hold press conferences and file briefs. From the outside the system of equal protection under the law looks like it is functioning. The inside is hollow, and the rot got there one rational decision at a time.
The reasons not to prosecute these people are not inherently bad reasons. That is the first thing to understand, because if the reasons were stupid or cowardly or obviously corrupt, the fix would be obvious. The reasons are good. These cases are expensive in a way that strains a county prosecutor’s annual budget, and the defendants are rich enough to hire defense teams that bill more in a week than the entire office spends on copy paper in a year. The defense will drag the case out for years and litigate every motion to the wire. The defendants’ followers will attack stochastically, and we have already watched that happen, with judges getting swatted at home, prosecutors getting death threats by the thousand, and family members getting doxxed across platforms designed to spread the information faster than anyone can take it down. The political cost is enormous. The reelection risk is unavoidable. The conviction rate suffers because these cases are harder to win than the routine ones that fill the docket. Every one of those concerns rests on something true, and a competent prosecutor evaluating any individual case will weigh them honestly and reach a conclusion that is, on its own terms, defensible.
That is the disease. The decisions are individually rational. The aggregate is catastrophic. Reasonable people are making reasonable decisions, and the cumulative effect is the slow disappearance of equal protection under the law. That reality is harder to talk about than the textbook version where bad people do bad things on purpose, but it is what is actually happening, and we have to be honest about it if we want to understand how to stop it.
The rot shows in four places, let’s walk through each of them.
The first is discretion. State prosecutors have enormous latitude about what to charge and what to walk past, and that discretion was always supposed to be a safety valve for cases where the law and justice pulled in different directions. Discretion has become the legal cover that lets every prosecutor in the country point at someone else and say it was their job. The county prosecutor points at the attorney general. The attorney general points at the county. Both point at the federal government. The federal Department of Justice has been hollowed out and turned around, so the federal pointing finger lands on no one. Everyone has an exit. Nobody has a duty. The discretion that was meant to soften the law for the vulnerable now operates as the device by which enforcement is silently suspended for the powerful, and the people making those individual decisions experience themselves as prudent rather than as participants in the demise of a democracy.
The second is the calculation each prosecutor discreetly runs. Charging a federal official means the long expensive document-heavy case described above, against defendants whose lawyers will fight every motion for years, with political enemies on national platforms attacking the prosecutor by name, with donors disappearing from the next campaign, and with no guarantee that even a conviction will help in a country where half the electorate has been told to treat the prosecution as the crime. Compare that to the alternative, which is to charge fifty more low-level cases, pad the conviction rate, run on being tough on crime, and win another term. The numbers point one direction, and the direction they point is away from the powerful and toward the people who cannot fight back. That observation is a description of the incentives and disincentives they are responding to. The incentives reward going after the weak and punish going after the strong, and prosecutors are responding to the environment.
We only change outcomes by changing the incentive structures and consequences for decision makers.
Letitia James filed civil suits against Donald Trump’s businesses and won a fraud judgment that survived appeal. The federal Department of Justice indicted her in October 2025 anyway, lost the first case after a federal judge disqualified the prosecutor, and failed twice to re-indict her. The case was thrown out but she had to spend time and money and deal with the ire of a retributive and politically motivated DOJ.
James Comey was indicted by the same office and saw his case dismissed on the same disqualification. They’re currently going after him again. They’re being made examples of, and even when the cases get thrown out it is still a warning to others. The message the regime wants to send is clear, stay in your lane or we will come after you.
The third place the rot shows is in what happened to Fulton County, Georgia District Attorney Fani Willis. Willis built a state RICO case against Donald Trump and eighteen co-defendants in Georgia. The case was the most legally durable of the four prosecutions because state charges sit outside the presidential pardon power. The defense team understood that, and they spent the next year and a half not litigating the underlying conduct but litigating Fani Willis. They subpoenaed her financial records, deposed her father, dragged her ex-boyfriend’s former law partner into court, sourced anonymous tips about where she had vacationed, and turned a romantic relationship with a colleague into a multi-month evidentiary hearing covered live on cable news. None of it touched the question of whether Donald Trump tried to overturn an election in Georgia. All of it determined whether Fani Willis would still be on the case when trial started. She was taken off the case. The Georgia Court of Appeals disqualified her in December 2024. The Georgia Supreme Court declined review. Replacement prosecutor Pete Skandalakis filed a nolle prosequi in November 2025 and killed the case without any adjudication on the merits.
Every prosecutor in the country watched a defense team spend more time and money attacking the prosecutor than defending the client, and watched it work. The message was not subtle. Build a serious case against the regime and they will not fight you on the evidence; they will fight you on your marriage, your hires, your travel, your taxes, your office romances, your past filings, and anything else a private investigator can find, and they will keep fighting on those grounds until you are off the case or out of office. That chilling effect functioned as the actual goal of the litigation, not a side effect of it.
The fourth place the rot shows is in the timing, which is where the failure of the system becomes most visible. Alvin Bragg ran the only one of the four prosecutions that actually reached a jury. Twelve New Yorkers convicted Donald Trump on thirty-four felony counts on May 30, 2024. Judge Juan Merchan postponed sentencing twice over the next five months, pushing the final date from July to September to a slot three weeks after Election Day. Trump won. Merchan then postponed sentencing a third time and ultimately handed down the sentence on January 10, 2025, ten days before the inauguration. The sentence was unconditional discharge, which Merchan justified by citing the Supreme Court’s immunity ruling and the Supremacy Clause as constraints on what punishment a sitting president could be made to bear. The conviction stood. The sentence carried no fine, no probation, no supervision, no consequence of any kind. Seven and a half months passed between the verdict and the sentence, and in that span Donald Trump was elected president of the United States. A jury found a former president guilty of thirty-four felonies and the sentence amounted to the legal equivalent of a shrug.
And it was not just Merchan. Jack Smith was not appointed until November 2022, almost two years into Biden’s term. Letitia James filed her civil fraud case in September 2022 and did not reach judgment until February 2024. Bragg indicted in March 2024. Willis indicted in August 2023. Every prosecutor and every judge in the chain made timing decisions that, whatever the individual reasons, added up to the same outcome. None of the four prosecutions reached final resolution before voters went to the polls. Donald Trump ran for president as a defendant in pending cases instead of as a convicted felon serving a sentence, and the difference between those two things decided an election and ended four prosecutions.
Those are the four places the rot shows. No one had to take a bribe, no illegal order had to be issued, and every step in the failure was the product of individually defensible decisions made by people who told themselves they were being prudent, and the four mechanisms work together. Discretion gives prosecutors permission to walk away. The cost-benefit calculation tells them walking away is the rational career move. The retaliation playbook, demonstrated on Fani Willis, makes clear what happens to those who refuse to walk away. And the deference to the political calendar ensures that even the prosecutor who pushes through all of that and gets a conviction will see the conviction defanged before any consequence lands. Each mechanism reinforces the others. The structure produces the outcome from reasonable people responding rationally to incentives that reward inaction and punish courage.
Yes, some prosecutors are dumb, some are cowardly, and some are corrupt. Those people exist in offices across the country, and we should be replacing them with smarter, braver, cleaner ones wherever we can. That work, however necessary, is not the whole job and is not where most of the silence is coming from. Most of the silence comes from competent, reasonably honest prosecutors making what seems like the obvious choice over and over because that choice is what the structure has trained them to make. The smart decision in any individual case is the easy path. The smart decision across thousands of cases is the path that has continued to make things worse for everybody. The rationality of each input produces the irrationality of the outcome. That is the disease. That is what democracy rot looks like from the inside.
This is also how democracies actually die. The laws stay on the books and the codes do not change. But the enforcement disappears. The principle that animates a constitutional republic, that no one stands above the law, gets quietly retired by the people who were supposed to be its guardians. There isn’t an official order, just the normalization of injustice. By the accumulation of a thousand small abdications, each one rational in isolation, each one survivable in isolation, until one morning we wake up in a country where the law applies fully to the people who stock shelves at the grocery store and applies not at all to the people who run the country. The bark is intact but the trunk is hollow.
The tree is rotted through. The federal Department of Justice has been captured and turned into a weapon against anyone who opposes the people who captured it. The federal courts are watching power swallow the criminal code. The state-level enforcement system has been taught for years that prosecuting the powerful comes with far more cost than benefit, and the lesson has been heard. We are not going to pressure this institution back to its old function. The conditions that produced the old function are gone, and they are not coming back, and writing as though they might come back if we just press hard enough is the kind of comforting lie that has cost us most of the time we had.
The roots of the tree are still alive. Roots outlast trunks. Root systems survive fires that take down everything aboveground, and they put up new growth from the same root, and the new growth is stronger because it carries the lessons of what failed. We are going to grow what comes next from the root system that survives it.
Residents, cities, and states have always carried a variety of postures towards their engagement with the federal government. These fall into five categories which have precedent and are occurring to various degrees in a scattered patchwork of response. We can deploy them purposefully and concurrently.
Tier 0: Cooperative Federalism. We work together.
Tier 1: Uncooperative Federalism. Our city or state won’t provide material support for the actions we disagree with. Some Democratic leaders are doing this where they have political cover, though the practice is uneven and most states still provide significant cooperation in areas they could lawfully refuse.
Tier 2: Soft Secession. Financial independence that insulates residents from economic hardship resulting from federal actions. Soft Secession is moving forward with quality self-sustaining social safety nets and pro-democracy actions. It’s non-confrontational independence. Think of it like states saying “we don’t need you.”
Tier 3: Oppositional Federalism. States use their criminal codes to prosecute criminal behavior. Whether it’s a DUI from an FBI Director or a bribe handed to a DHS Director, the state has laws outlawing those activities and those laws do not exclude people from the consequences of their actions based on who they’re employed by. Think of this like states saying “if you won’t enforce the law, we will.”
Tier 4: Constitutional Non-Compliance. This is when international precedent such as the Nuremberg Trials become particularly relevant. If there are Nazi style concentration camps and your Governor is aware, they are expected to use any resources available out of urgent moral necessity.
The answer to our problem is enforcement of the law against even the powerful, without delay or political maneuvering, regardless of how rich or how powerful or how well-defended they are. Delaying the pursuit of justice is exactly how we got where we are today.
We change the calculations of your elected officials by being present and demanding better. Check out the books and booklets available at the end of this article to find resources that help answer the “but what can we do" question.
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Check out our books, booklets, and model legislation for more info on effective activism and state response to federal authoritarian capture.
Toppling Tyrants: A Field Guide to Dismantling American Fascism — physical copy / free download
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“Delaying the pursuit of justice is how we got here today” is spot on and sums up this shit show we’re living in perfectly. What particularly angers me the most, is the lost opportunity to put the orange felon behind bars where he truly belongs. Time and again he slips through the cracks in the judicial system, cracks not available to the ordinary citizen. He should have been put in a cell for J6 atrocities but spineless men couldn’t be bothered.
Heart rot is such an apt and accurate analogy for the condition of our government. Thanks for providing the steps we can take to try and remove it.