If Merrick Garland doesn’t blame Trump and his coup plotters, our democracy is toast


The Justice Department announced this week that it will crack down on airline passengers who have temper tantrums. Now, if Attorney General Merrick Garland just did something about the people plotting to overthrow our government and a former president who serial obstructed justice and abused power, we might have something.

Not that in-flight safety is not important. He is. Just as it is important to stop and pursue the silly Trumpist infantry that stormed the Capitol on January 6. This is all important. But it’s not enough.

President Joe Biden may have got everything else right, but if his administration, starting with the Department of Justice, is wrong in its response to threats to our democracy posed by Trump and the GOP, nothing else is wrong. may matter.

A highly respected lawyer, Garland was chosen by Biden to depoliticize the DoJ and end the abuse of its power that we have seen under the appointments of Trump, Jeff Sessions and Bill Barr. Of course, he has taken a few steps in this direction. But if the result of his depoliticization is to tiptoe around the blatant serial misdeeds of Republican Party leaders, then his efforts will have the exact opposite of the intended effect. By not holding Trump and Co. responsible, Garland will set the stage for them to relentlessly pursue their efforts to transform the United States into a one-party state in which only Republicans can win elections and whatever tactics they want. they can use to retain power will have been effectively validated by the inaction of Garland and his DOJ.

Garland has, on more than one occasion, taken actions that have actually strengthened or emboldened those who currently pose a threat to our system. A particularly egregious example of this is Garland’s decision to side with Trump by arguing that the former president was acting in an official capacity when he lied and defamed journalist E. Jean Carroll following his accusation that Trump had raped her long before she was elected. President.

Garland’s position was defended by allies who claimed he was an “institutionalist” who saw it as his duty to defend presidential prerogatives. a threat just as serious as that posed by the self-proclaimed “institutionalists”.

Recently, Garland received praise for asking the Justice Department to apply contempt of Congress charges against Trump’s disheveled pal Stephen Bannon. However, the DOJ’s decision to prosecute Bannon took weeks when it should have taken a few minutes. The case was decided. Bannon ignored a legitimate congressional subpoena, claiming rights he did not have.

Merrick Garland speaks to staff on his first day at the Department of Justice on March 11, 2021.


I have been advised by wise and respected friends, like former United States Attorney and Assistant Deputy Attorney General Harry Litman, that we should be grateful for the Bannon decision because it will allow Congress to do its job. I understand the view. But this congressional investigation has a clock ticking on it. If the GOP returns to the House next November, as many are now predicting, the investigation into the Jan.6 coup attempt will be instantly terminated by Republicans. So, to anyone who has been called to the committee, it may seem like all they have to do to avoid suffering the consequences of their action is to stall like Bannon does. In this case, justice delayed will most certainly be justice denied.

What is more disturbing to me is that the only reason we hear about a case brought against Bannon as a coup plotter (or middle top management anyway) is that the Congress is investigating the events of January 6. We have not heard a sneak peek from the Department of Justice on prosecuting those responsible for instigating, planning, or funding efforts to reverse the legal transfer of presidential power to the man elected by the American people, Joe Biden. .

We also haven’t heard from them in terms of prosecutions of the dozen cases of overt obstruction of justice that Special Counsel Robert Mueller’s report cited against Trump. We have seen that Garland allows Special Prosecutor John Durham’s highly politicized investigation into the conduct of the Trump-Russia investigation (by continuing to fund it) to continue. So we have the real possibility that those who have sought to examine the Trump-Russia relationship that the Mueller and Congressional inquiries have demonstrated to be real, unprecedented and dangerous could be prosecuted while those who have actively sought help from a foreign enemy to win an election will not.

Other wise and seasoned legal observers for whom I have immense respect argue that more patience is required, that we don’t know what Garland is doing behind the scenes, and that we should give him more time. One of those people is former US lawyer Barbara McQuade. She said to me, “While I understand the frustration that the DOJ has yet to indict high-level defendants in the January 6 attack, I think it is not yet time to do so. be angry with AG Garland for his inaction. We do not know what investigative steps may take place due to the grand jury secrecy requirement. Robert Mueller devoted nearly two years to his investigation. I would expect this investigation to take at least that long.

AG Gill, another analyst of these matters for whom I have great respect, creator and host of the Daily Beans and Mueller She Wrote podcasts, pleads caution for another reason. She feels that there is ongoing efforts to turn public opinion against Garland and the DOJ as a means of weakening and discrediting these institutions.

And yet, Garland’s behavior to this day has left me worried. The conversations I have had with people within the DOJ have not allayed these concerns. There, the frustration with Garland begins with his management style (which insiders compare to that of a judge running his cabinet in which his office is a sort of bubble outside the department and made up of a small team akin to the clerks that ‘he had when he was in righteousness).

This extends to fears that he is going too far in the name of prudence and the desire not to be seen as political. This too is a holdover from his court days and ignores that A) he is politically appointed, B) the issues he deals with are hyper-politicized and c) there is no way to prosecute politicians for crimes. committed in the name of partisanship without appearing political.

But, still, I admit it. I hear our court clock ringing as loud as Mona Lisa Vito’s biological clock. Given that the stakes are so high and given some of the decisions Garland has made, I wonder when it’s okay to be alarmed, when it’s okay to get angry.

I asked Dahlia Lithwick, editor-in-chief of Slate and host of the “Amicus” podcast, if my burgeoning anger was acceptable, and she replied, “I already agreed enough to get mad at this last summer. It is possible to admire and honor all the good and vital initiatives undertaken by Garland’s DOJ, to rejoice in its principled efforts to restore the wall between the Justice Department and the White House that Bill Barr and Donald Trump had reduced to a palisade, and must yet be exasperated by the DOJ’s obvious hope that Trump’s calculation of anarchy can be left to New York and Congressional prosecutors.

She went on to make an important historical point: “When the Obama administration chose to end the Bush-era torture and restitution programs, the past did not go away, it just buried it. . And given that Trump’s electoral denial is categorically not in the past – according to a November poll of the Institute for Research on Public Religion, 68% of Republicans believe the 2020 election was “stolen” from Donald Trump. This growing number not only casts doubt on the integrity of elections and the rule of law, it is used to pass the abolition of elections and democracy subversion measures in states across the country. The “big lie” that sowed on January 6 has become the litmus test for GOP loyalty. I understand that the prospect of pursuing political enemies and criminalizing fiery speech and politics is a chilling reminder of the McCarthy era. But the lies, violence, white supremacy and misogyny of January 6 are not buried in the past, they are metastasizing and spreading in ways that also threaten the future.

Revered lawyer Lawrence Tribe, who taught Garland when the Attorney General was a Harvard Law School student, suggests we give his former student a little more time, but not an unlimited amount. He also hears the countdown. Tribe told me, “If Merrick Garland hadn’t cleared Bannon’s indictment when he did, I sure would’ve gotten angry a long time ago. At least as far as someone like me is concerned, he bought a few weeks with this indictment, but not a few months.

“All things considered,” he continued, “I’ll be both disappointed and angry if we find ourselves in January 2022 without solid evidence – in a city that leaks like a sieve – that the GM is rushing forward. to hold Trump and his enablers, enablers, backers and co-conspirators criminally responsible for the coup they attempted to carry out and the violent insurgency they mounted against Capitol Hill to delay, hinder and, if possible, reverse the current solemn electoral process.

This, too, makes sense to me. What is certain is that time is running out. There is every reason to fear that Trump and the coup plotters are not held to account in any meaningful way. If they are not, they will see the inaction of our justice system as authorization to continue their attacks on our system of government. What is more, in the absence of an effective effort from the Department of Justice, these attacks are all the more likely to succeed and to be compounded by even greater abuses. And at that point, all the institutionalists in the world will not be able to reconstitute our Humpty Dumpty from a democracy.


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