The wreckage Merrick Garland leaves behind
His
failures left American democracy ripe for the picking.
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It has often been said that Donald Trump was running for
president to keep himself out of prison. Mission accomplished.
But the fact that Trump wasn’t behind bars long ago, that
he didn’t suffer any consequences for his criming and now likely never will,
can be laid squarely at the feet of one man: Attorney General Merrick Garland.
Garland dragged his feet on prosecuting Trump for election interference and
pilfering classified documents, making it easy for him to run out the
clock.
Coming in on the heels of a literal insurrection, Garland was a bad fit
for his job from the jump. He made clear early on that he didn’t see addressing
issues from the Trump era as a priority, declaring that he would not look
backward. Garland is an institutionalist, leading him to see his real
job as protecting the Department of Justice rather than imposing any
consequences on Bill Barr and others who turned the DOJ into a corrupt
playground.
Someone who saw the abstract notion of an institution as
more important than actual people and actual wrongdoing was never going to be
the person who aggressively pursued an ex-president whose crimes were always in
full view, which was what the country desperately needed back in 2021.
Bringing a knife to a gunfight
Rather than moving quickly to prosecute people — including
Trump — for January 6, Garland’s first moves were to take actions that actually
favored Trump, all in the name of protecting the institution.
In May 2021, the DOJ went to court to block the release of
most of a Bill Barr memo that might have revealed how hard Barr worked to avoid
charging Trump with obstruction of justice after the Mueller report. There,
Garland was continuing work that had begun under Trump. But while it made sense
that Barr would want to block the release of information revealing his role in
helping Trump, it made no sense for Garland to want the same. The country had
both a right and a need to learn everything possible about what happened during
the first Trump presidency and led to a spasm of treasonous violence. That’s
far more important than getting a generally favorable ruling on the DOJ’s right
to sit on memos.
Garland also moved quickly to defend Trump against defamation claims by E. Jean Carroll,
brought after Trump claimed she made up her accusation of sexual assault
to sell books. The DOJ filed a brief
substituting the government as the defendant for Trump so it could argue that
Trump’s defamation of Carroll was done in the scope of his employment as
president, which would likely have resulted in the case getting dismissed. As with
the Barr memo, Garland decided it was more important to preserve the DOJ’s
general ability to protect federal officials from defamation claims than to
acknowledge the unprecedented nature of Trump’s behavior and let him suffer the
consequences he clearly deserved.
Taken in a vacuum, neither of these actions would be quite
so galling. In both instances, Garland was generally trying to maximize the
DOJ’s power, which isn’t necessarily awful. But what is galling is that he took
these two steps with such swiftness, only a few months after being confirmed,
while not showing nearly the same concern to address Trump’s crimes.
Fairness to the point of absurdity
Garland’s desire to always appear evenhanded is also what led to the
ridiculously aggressive pursuit of Hunter Biden, naming a special counsel and
ultimately successfully prosecuting the president’s son for tax evasion and
lying on a federal form to obtain a gun.
And don’t forget how swiftly Garland appointed a special counsel to
investigate President Biden’s retention of classified material. In early
November 2022, the White House voluntarily disclosed that some classified
documents had been found at Biden’s think tank. The FBI opened an investigation
five days later, and Garland raced to name a special counsel, appointing Robert
Hur in January 2023. Hur was a Trump appointee, serving as United States
Attorney for the District of Maryland from 2018 to 2021, and he demonstrated
his hackishness by releasing a report in February of this year
that did grave political damage to Biden by gratuitously describing him as an
“elderly man with a poor memory.”
While Garland couldn’t move fast enough to protect the DOJ
and to aggressively pursue the Biden family to show his evenhandedness, he
didn’t get around to naming Jack Smith as a special prosecutor until November
2022, nearly two years after the insurrection. By that time, it was likely
already too late. This is true even if Smith had not run into unexpected
obstacles, such as Trump winning over the Supreme Court with an absurd argument
that he was basically wholly immune from criminal charges.
And then there was Judge Aileen Cannon slow-walking the classified
documents case and ultimately buying the equally flimsy argument that Jack
Smith was not legally appointed and using it to throw out the charges. Both of
those things lengthened Smith’s timeline considerably, but Garland knew full
well that complex cases take a long time to wind through the federal system
even when there isn’t an ex-president involved.
Garland was in charge of the prosecution of
Timothy McVeigh, the Oklahoma City bomber and rightwing domestic terrorist.
McVeigh was indicted on April 10, 1995, but the trial didn’t occur until
mid-1997, with McVeigh being convicted on June 2, 1997, and sentenced to death
on August 14, 1997. But McVeigh’s appeals stretched until December 2000.
To be fair to Garland, death penalty cases have a much more
complex web of appeal options than what would be available to Trump.
Nonetheless, Garland was undoubtedly aware that Trump would file numerous
motions to get rid of the criminal cases against him and then immediately
appeal any losses on those motions.
All those motions and appeals take time, which is why it
was a bad idea to wait until November 2022 to appoint Smith, who then had to
convene a grand jury to consider criminal charges over Trump’s willful
retention of classified documents and his lies to the FBI about it. Smith
didn’t issue an indictment in that case until June 2023. Smith had to convene a
separate grand jury for charges related to the insurrection, so the DOJ didn’t
indict Trump on those charges until August 2023.
This left Smith overseeing two incredibly complex cases against a
defendant with nearly limitless resources, given that Trump could keep tapping political action
committees for his legal bills, shifting the cost to his campaign donors
and the RNC. By March 2024, Trump had
racked up $100 million in legal fees, and while
he kept draining the coffers of various PACs, donors were always eager to
replenish those funds. Therefore, Trump could file as many frivolous motions as
he wanted and run out the clock without taking any money out of his pocket.
Smith never honestly had a chance that these cases would wrap up before
Election Day.
Garland’s foot-dragging on naming Smith is precisely what
allowed Trump to run out the clock on his federal criminal charges, setting the
stage for a presidential run that culminated Tuesday with his shockingly
thorough defeat of Vice President Kamala Harris.
History’s judgment will be harsh
Garland’s legacy could have been to provide transparency and, frankly,
healing to a country that watched a president lead an insurrection and try to
stop the peaceful transfer of power. Garland’s legacy could have been overseeing a truth and
reconciliation commission to hold accountable every person in Trump’s orbit who
helped him interfere with the election and march on the Capitol.
Garland’s legacy could have been showing that the DOJ was
committed to repairing all the things Trump broke. Instead, his legacy is that
of ineffectiveness, of dithering, and of not understanding that when Trump blew
through all the guardrails of democracy, the DOJ needed to be a part of
repairing and strengthening them.
None of that happened, and now that Trump won, the federal criminal cases
are dead in the water, with Smith likely winding them down before Trump takes
office. There’s no point in continuing to pursue the charges, given the rule
that sitting presidents cannot be indicted or
prosecuted. And even if the cases proceeded, Trump has already floated the idea
of pardoning himself.
Garland’s protection of the DOJ did nothing but preserve that institution
long enough for Trump to return to power and weaponize it against political
opponents. It was a profound failure that our democracy will be lucky to
recover from.
