Will Merrick Garland Defend Democracy?
He
came in wanting to depoliticize the Justice Department. But does that mean
letting an ex-president get away with subverting democracy?
Eric Holder, the former frontline prosecutor
and local judge who served as Barack Obama’s first attorney general, was never
a fan of Donald Trump, but he responded cautiously in 2019 when asked whether
Trump should face prosecution even after he left office. “I think there is a
potential cost to the nation by putting on trial a former president, and that
ought to at least be a part of the calculus that goes into the determination
that has to be made by the next attorney general,” Holder told David Axelrod in
a CNN interview. But in the
wake of the January 6 riot and related investigations, Holder’s view appears to
have significantly hardened. Appearing in early May on CBS News’ Face
the Nation, Holder offered a tougher assessment: “At some point, people at
the Justice Department, perhaps that prosecutor in Atlanta, are going to have
to make a determination about whether or not they want to indict Donald Trump.”
Asked by interviewer Margaret Brennan if he would issue such a criminal
indictment, Holder said he thought available evidence would justify that. “My
initial thought was not to indict the former president out of concern of
what—how divisive it would be. But given what we have learned, I think that he
probably has to be held accountable.”
Many Trump opponents, including key
Democratic politicians, have for months been calling for the Justice
Department, under the leadership of Attorney General and former federal appeals
court judge Merrick Garland, not only to file harsher charges against a wider
range of alleged January 6 riot participants but to prosecute reputed riot
organizers. Possible targets range, Trump critics and some legal experts say,
from internet activist Ali Alexander and veteran Republican operative Roger
Stone to right-wing law professor John Eastman, author of the infamous memo
laying out how Republicans could overturn the presidential election results, to
Trump White House aides to, most notably, Trump himself. Former White House
chief of staff Mark Meadows is of particular interest. Some witnesses are known
to have testified to the House committee investigating the January 6 riot that
he was directly warned about possible violence. Cassidy Hutchinson, a Trump
White House assistant, said that in early January 2021 “there were concerns
brought forward to Mr. Meadows” indicating “that there could be violence,” but
added that it was unclear to her if Meadows “perceived them as genuine
concerns.” Rolling Stone reported that two anonymous sources
told its reporter about how they had participated in “dozens” of briefings in
the days before pro-Trump rioters attacked the Capitol. One source told the
magazine that Meadows was totally clued in on such discussions. “Meadows was
100 percent made aware of what was going on,” the source said.
How much Trump himself knew remains unclear.
At the “Stop the Steal” rally near the White House not long before the start of
the riot, Trump told the crowd: “We’re going to walk down to the Capitol, and
we’re going to cheer on our brave senators and congressmen and women, and we’re
probably not going to be cheering so much for some of them, because you’ll
never take back our country with weakness. You have to show strength, and you
have to be strong.” Some information about what he was up to privately, on
January 6 and before, has been leaked, including the rather stunning revelation by The
New York Times in late May that he reacted approvingly as he watched
the rioters chant “Hang Mike Pence!” but not enough to draw firm conclusions on
whether he committed crimes.
Jonathan Winer, a former congressional
investigator and State Department official, said in an interview that evidence
is building that the Trump White House discussed calling out the National Guard
to back Trump and his supporters as they sought to prevent the certification of
the election for Joe Biden. In January, Winer wrote a widely circulated article
laying out the case for prosecuting Trump, citing specific sections of the U.S.
Code under which a prosecution could potentially be made (18 U.S. Code § 242,
“deprivation of rights under color of law”). In Winer’s view, the riot and
efforts by Trump and his entourage to manipulate politics and the law to keep
Trump in office “were inextricably linked.” There was a “plot by Trump and
Meadows to overturn the election,” he said. At present, however, Winer and
other current and former officials following investigations acknowledge,
Justice Department interest in these issues is unclear at best.
The political calendar is inexorably moving
forward. If Republicans, still under strong Trump influence, recapture control
of the House in this year’s congressional elections, they will likely shut down
the January 6 investigation committee. Instead, a Republican House majority
would almost certainly redirect investigative resources and attention to
scandals they believe could damage Democrats in general and the presidential
family in particular, such as the dubious business dealings of Hunter Biden.
The possibility, if not likelihood, of a Republican takeover in the House—and
maybe the Senate, too—has already fueled speculation inside law enforcement and
political circles that any potential move by Garland’s Justice Department to
file January 6–related criminal charges against Trump himself and/or his family
and top aides would have to be undertaken before the end of 2022. Some recent
public statements and news revelations suggest that the department has
definitely begun to look into issues such as the inspiration and origins of the
January 6 riots and into alleged efforts in multiple states by Trump supporters
to replace legitimate Biden electors with fraudulent pro-Trump electoral
slates. But such investigations appear to be in relatively early stages, and it
is unclear how advanced they will be by the November elections.
In this evolving drama, the individual who
will be principal screenwriter and director is Merrick Garland. Officials and
legal experts observing how the investigation is unfolding are wondering how
dramatic the final act will be. Maybe Garland and his team are moving forward
toward Trump and other prominent possible targets with “exceptional secrecy,”
said Andrew Kent, a national security expert at Fordham University School of
Law. But at present, Kent said, “I’m reading the absence of tea leaves”
regarding how high up the investigation will go. A former senior Justice
Department official said that until recent news reports suggested a significant
widening of the department’s investigation, “I thought they had decided not to
go after Trump.” The former official said that if prosecutors were really
seriously going after Trump, there ought to be more public indication they were
calling relevant witnesses before grand juries.
A former U.S. official in close contact with
key Trump critics in Congress said that the possibility of criminal charges
against Trump cannot be ruled out. “But on the other hand, we don’t know,” the
former official said. “It’s a black box.” This source also told TNR that top legal
aides in the House had spoken of “a priestlike vow of silence” Garland had
imposed on the department, telling employees not to reveal any details of its
actions to House staff. That is, the department—both “Main Justice,” as the
department is referred to by insiders, and all U.S. attorney’s offices—receives
evidence from House investigators, but it tells them nothing about its
activities. The source added, by the way, that this is probably a good thing,
because it protects the department from charges of politicization.
It is this last point, the depoliticization
of the department, that has been a key Garland priority. After what Bill Barr
and Donald Trump did to Justice, it’s hard to blame him, and it’s an admirable
position. But given that a prosecution of Trump will be instantly politicized
by the right, does that mean that Garland could back away from such a move,
even if justified by the facts, because it would seem “political”? Garland
could find himself restoring independence and integrity to the Justice
Department—while simultaneously allowing the subversion of democracy by a
former president.
Laying the Groundwork
The case for the possible prosecution of
Trump and top aides can be traced back to the days shortly after the riot.
Congressional committees began serious investigations of the January 6 events
and the background to them at that time. In a report issued in June 2021, two
(Democrat-led) Senate panels, the Rules and Administration and Homeland
Security and Governmental Affairs committees, said they found “critical
breakdowns” in intelligence operations, including information collection and
sharing, by the Department of Homeland Security and FBI. The committees found
that spy agencies underestimated the seriousness and nature of the threat to
the Capitol on January 6, and that the FBI did not share relevant information
it had with police guarding the Capitol.
A report by the Senate Judiciary Committee
published last October widened the focus to Trump and his political allies—and
directly raised the issue of whether Trump himself violated laws. The committee
found that the country was “only a half-step away from a full-blown
constitutional crisis” when Trump and his entourage “threatened a wholesale
takeover of the Department of Justice.” The Judiciary report included an
account of how Jeffrey Clark, acting head of the Justice Department’s Civil
Division, whom Trump at one critical point tried to install as acting attorney
general, tried to pressure other DOJ officials to overturn the election
results. A principal Judiciary Committee finding was that Trump repeatedly
pressured DOJ leadership “to endorse his false claims that the election was
stolen and to assist his efforts to overturn the election results.”
Beginning on December 14, the day former
Attorney General William Barr announced his resignation, and continuing almost
until the January 6 insurrection, Trump directly and repeatedly asked DOJ’s
acting leadership to initiate investigations, file lawsuits on his behalf, and
publicly declare the 2020 election “corrupt,” the committee said. Documents and
testimony confirmed that Jeffrey Rosen, Barr’s successor as acting attorney
general, and in some cases other senior DOJ leaders participated in several calls
and meetings where Trump directly raised discredited claims of election fraud
and asked why DOJ was not doing more to address them. The committee said these
contacts included multiple calls between Trump and Rosen and Trump and Richard
Donoghue, an associate deputy attorney general, and Oval Office meetings that
included Rosen and Donoghue on December 31 and January 3. The committee
declared, “In attempting to enlist DOJ for personal, political purposes in an
effort to maintain his hold on the White House, Trump grossly abused the power
of the presidency.”
According to the committee the House set up
to investigate the insurrection and its origins, Trump engaged in detailed
discussions with Pence and others about what powers the vice president might
have to alter the election results. The committee notes that at 1:00 a.m. on
January 6, Trump tweeted: “If Vice President @Mike_Pence comes through for us,
we will win the Presidency.... Mike can send it back.” Seven hours later, Trump
tweeted: “States want to correct their votes ... All Mike Pence has to do is
send them back to the States, and we win. Do it Mike, this is a time for
extreme courage!” The committee said Trump called Pence personally to pressure
him to act.
“It’s clear there was a coordinated attempt
to weaponize the Justice Department to subvert the election. Investigators need
to examine every aspect of that effort, from pressuring Georgia legislators and
election officials to scheming to install Jeffrey Clark as Attorney General.
This has to be a top priority,” Senator Sheldon Whitehouse, the Rhode Island
Democrat who is a senior Judiciary Committee member, said in an email.
The Judiciary Committee’s report didn’t aim
only at Trump. It found that “Meadows asked acting Attorney General Rosen to
initiate election fraud investigations on multiple occasions, violating long
standing restrictions on White House-DOJ communications about specific” cases
under investigation. The committee said “Meadows asked Rosen to have DOJ
investigate at least four categories of false election fraud claims that Trump
and his allies were pushing.” Meadows asked Rosen to have the DOJ look into
“various discredited claims of election fraud in Georgia that the Trump
campaign was simultaneously advancing in a lawsuit that the Georgia Supreme
Court had refused to hear on an expedited basis.” Meadows also asked the DOJ to
“investigate a series of claims of election fraud in New Mexico that had been
widely refuted,” including a claim that machines built by Dominion Voting
Systems produced late-night “vote dumps” for Democratic candidates.
Meanwhile, in contrast to the Judiciary
report, for months after the riot, FBI and prosecutors’ analyses of what
happened on January 6 focused almost exclusively on the riot and its direct
participants. In a story that attracted angry responses from some Trump
critics, a colleague and I reported for Reuters on August 20 of last year that
five current and former law enforcement officials—very well placed—told us that
FBI investigators at that point had found “scant evidence that the Jan. 6
attack on the U.S. Capitol was the result of an organized plot to overturn the
presidential election result.” The FBI still believed the violence was not
centrally coordinated by far-right groups like the Oath Keepers, Proud Boys,
and Three Percenters, or by prominent Trump aides or supporters.
However aggressively congressional
investigations proceed, most notably by the House select committee, it remains
unclear how closely Garland’s Justice Department will follow. Recent
developments indicate that the department has significantly widened the scope
of January 6–related investigations and is examining issues beyond the riot
itself. One key move earlier this year signaling that Justice was toughening
its approach was a federal grand jury indictment issued on January 12
featuring “seditious conspiracy” charges
against Stewart Rhodes, the leader of the Oath Keepers, and 10 other members of
the group. The first seditious conspiracy charges were filed a few months after
Matthew Olsen, a former director of the National Counterterrorism Center, was
confirmed as assistant attorney general in charge of the Justice Department’s
National Security Division. (It is not clear what role Olsen might have played
in determining how the Oath Keepers case should move forward; Olsen did not
respond to requests for comment.)
Another signal of the department’s
seriousness came in late January, shortly after the seditious conspiracy
indictment was issued, when Lisa Monaco, Garland’s deputy attorney general,
confirmed in a CNN interview that the Justice Department was investigating slates of electors assembled
by Trump supporters that declared Trump the winner in seven key states whose
governments had already certified Biden as winner of their electoral votes.
Recent federal court rulings also appeared to openly encourage a possible
prosecution of Trump. In late February, Amit Mehta, one of the D.C. federal
judges hearing January 6 cases, ruled that Trump could be held civilly liable
for egging on participants in the Capitol riot. Then, in an explosive late
March opinion ordering Eastman to turn over key emails to House investigators,
David Carter, a federal judge in California, found that Trump “more likely than
not ... corruptly attempted to obstruct the Joint Session of Congress on
January 6, 2021.” He wrote: “The illegality of the plan was obvious.”
Also in late March, reports began to surface
that the Justice Department focus had expanded to include persons around Trump,
and possibly even Trump himself. The Washington Post reported
that the criminal investigation had expanded to examine “preparations” for
January 6, including the issuing of subpoenas to unidentified “officials in
former President Donald Trump’s orbit” who assisted in planning, funding, and
executing the rally that preceded the Capitol riot. The New York Times also
reported that the expanded Justice Department investigation included the involvement of
government officials in efforts by Trump to “obstruct the
certification of President Biden’s Electoral College victory” as well as
alleged efforts by Trump supporters to put forward bogus slates of electors.
The Times also said it had seen a subpoena indicating
prosecutors were seeking information on people “classified as VIP attendees”
who were present at Trump’s pre-riot rally. Then, in early May, the Times reported
that the Justice Department had opened a grand jury investigation into
possible mishandling of classified documents by
Trump as he brought boxes of official materials with him when he left the White
House for Mar-a-Lago.
But Was It Illegal?
But egregious as Trump’s behavior was, the
question remains whether it was illegal—especially given that Trump was
president at the time, and U.S. jurisprudence is ambiguous at best on how
strictly laws apply to sitting presidents. A story involving the Oath Keepers’
Rhodes, the hard-right anti-government figure who wrote after Biden’s victory
that the United States now faced “a moment of peril as great, or greater, as
what General Washington and his men faced in 1776,” provides a tentative window
on White House contacts with rioters.
Rhodes, who was indicted in January on
seditious conspiracy charges, was in a suite at Washington’s Phoenix Park Hotel
on January 6 when, prosecutors allege, he “called an individual over speaker
phone.” The feds said that another Oath Keepers official heard Rhodes
“repeatedly implore” the unidentified person he was talking to “to tell
President Trump to call upon groups like the Oath Keepers to forcibly oppose
the transfer of power.” Prosecutors said the person Rhodes was talking to
“denied Rhodes’s request to speak directly with President Trump,” and that,
after the call ended, Rhodes told his cohorts, “I just want to fight.”
So far, Rhodes’s post-riot discussion with
someone who he evidently believed was close to Trump is the only direct
evidence January 6 investigators have released that begins to suggest some kind
of dealings between riot leaders and the Trump White House, and evidence of the
extent of such contacts at present remains murky at best.
Aside from the question of what laws Trump
may have broken, there’s also a potential snag for Justice around the very idea
of seditious conspiracy charges. Although it has not so far become a major
subject of courtroom argument in the Oath Keepers cases, the limited legal
history of the modern use of seditious conspiracy charges by federal
prosecutors has raised questions about the difficulty of using this law. In
1954, prosecutors successfully filed such charges against four militants
demanding independence from the United States for Puerto Rico who shot up the
House of Representatives, wounding several members of Congress. The shooters
and more than a dozen co-conspirators were subsequently convicted of seditious
conspiracy, and the leader of the group that staged the attack spent 35 years
in prison. Prosecutors also obtained seditious conspiracy convictions against
Omar Abdel-Rahman, the radical Egyptian imam known as the Blind Sheikh, and
nine others in 1995 for allegedly plotting to blow up bridges, tunnels, and
other targets in New York City.
The most recent attempt before January 6 by
prosecutors to bring seditious conspiracy charges targeted nine members of a
militia group called the Hutaree. Based in Michigan’s Lenawee County, the
Hutaree claimed to be Christian warriors whose website vowed that the group
“will one day see its enemy and meet him on the battlefield if so God wills
it.” But a judge ultimately threw out the sedition charges when the case came
to trial in 2012, ruling that prosecutors had produced little if any evidence
that the defendants had put together detailed plans for an anti-government
rebellion. The judge also found that the prosecution case relied too heavily on
anti-authority diatribes that the judge found were protected free speech under
the First Amendment. Ultimately, three Hutaree members pleaded guilty to
weapons charges.
Finally, there is the case of the four
Michigan militia members accused of conspiring to kidnap Governor Gretchen
Whitmer. Though they did not face charges explicitly including seditious
conspiracy, in late April a federal court jury in Michigan acquitted two of the
men. The judge declared a mistrial for the two additional defendants in the
case. The four suspects were alleged by prosecutors to have become enraged by
Covid-19 restrictions Whitmer instituted and to have possible connections to a
loosely organized far-right group known as the Boogaloo movement.
A former senior law enforcement official
said that the Michigan acquittals could signal problems that prosecutors of
January 6 cases might encounter when seeking convictions in cases that go to
trial. Prosecuting any seditious conspiracy case can be difficult, the former
official said, because they are hard to sell to juries. For that reason,
federal prosecutors are “reluctant to go forward on a case that’s going to be
picked apart.”
What Will Garland Do?
What, then, will Garland decide to do? Trump
critics and many legal experts say that sufficient evidence exists that
prosecutors could use to build a criminal case not only against his acolytes
but against Trump himself. “There is no accountability” if the department
shrinks from prosecuting Trump, said University of Baltimore law professor
Kimberly Wehle. “I think Merrick Garland has to understand the massive
implications of not prosecuting Donald Trump....” No prosecution of Trump,
Wehle said, would be an “invitation to future presidents to do whatever you
want. The Constitution is about pushing back against people’s worst intent to
amass and abuse power.”
Michael German, a former FBI agent now
affiliated with the Brennan Center for Justice, expressed concern that “so many
of the initial charges” that prosecutors have filed against January 6
defendants so far have been “for relatively minor misconduct.” German noted,
however, that “a lot” of the Justice Department’s strategy regarding what kinds
of charges should be brought may well have been made before Garland took charge
of the department in the wake of Biden’s inauguration. In indicting the Proud
Boys’ Enrique Tarrio in March, German said, prosecutors “didn’t really
understand how coordinated the attack was.” (In June, the Justice Department
added a charge of seditious conspiracy to the indictment against Tarrio and
four other Proud Boys members.) The Justice Department was “looking at January
6 as a stand-alone event,” German said, rather than looking more broadly at a
“network that was sending violent people across the country to engage in
violence.” Federal investigators “have a lot of capacity to go after”
anti-government plotters “who operate across state lines,” German said.
Historically, however, federal agencies “to this day” don’t collect enough
information on the activity of white supremacist leaders and groups.
Prosecutors have been “late to recognize how much coordination” January 6
participants engaged in during the days and weeks before the event, German
said.
Other legal experts and former officials
nonetheless question whether the FBI and Justice Department will ever pull
together enough evidence to satisfy prosecutors—and Garland in particular—that
a prosecution of Trump is viable. A former senior law enforcement official, who
asked not to be named when discussing the January 6 investigation, said that,
given the historical problems federal prosecutors had with seditious conspiracy
law in the Hutaree case, some investigators are concerned that trying to use this
law not only against rioters but to somehow expand its use to persons allegedly
involved in inciting the riot or trying to interfere in certification of the
election results would be unlikely to prove effective.
The reason? The First Amendment. Protection
for free speech is a key roadblock for successful prosecution of such charges,
a former senior law enforcement official said. Josh Blackman, a professor at
the South Texas College of Law Houston, and adjunct scholar at the libertarian
Cato Institute, said he had “yet to see any” indication that prosecutors are
“going to try to indict Trump.” Many of those who walked into the Capitol “were
committing a trespass—clearly a crime,” Blackman said. But basing a criminal
prosecution against alleged organizers or persons who inspired such activity
would rely on “an untested legal theory” that would be “very, very risky,”
Blackman said.
Other legal experts, however, said that
Garland and his team must seriously consider criminal charges against Trump,
his associates, and members of his legal team. Harvard Law professor Laurence
Tribe, a sharp Trump critic, told me prosecutors in both Georgia, where a
special grand jury investigating alleged 2020 election interference reportedly
began work in early May, and in Washington, where a grand jury has been
investigating the riot and the activities of Trump and his associates for some
time, “should methodically build a case that draws on the mountain of
documentary and testimonial evidence already available (and fills in gaps with
new subpoenaed documents and testimony, both voluntary and pursuant to
subpoena) to paint a detailed, blow-by-blow account of how the former president
began, even before the November 2020 election, to suggest that any result other
than one in which he vanquished his Democratic opponent would necessarily
result either from fraud or from breaking the rules set by the key state
legislatures.”
Tribe said the evidence shows Trump then
“proceeded, as the results pointing to a clear win for Biden came in and were
certified, to conspire with his inner circle and a group of corrupt lawyers to
pressure federal and state officials into fabricating fake election results and
then fake electoral certificates in an audacious effort to strong-arm Vice
President Mike Pence into stealing the election for Trump or at least taking
illegal steps to toss the electoral count process into the House of
Representatives, where a pro-Trump outcome was assured by the
one-state-one-vote rule; and … conspired with those and other individuals and
funders to organize a march on the Capitol knowing that it would turn into a
violent insurrection in hopes that the chaos and terror would ultimately lead
to installing Trump as the incoming president in time for the inauguration
despite knowing that he had lost a free and fair election.”
“The Justice Department needs to pursue
every lead to uncover those responsible for launching the events of January 6,”
Senator Whitehouse added. “As I told the Attorney General at the very beginning
of his tenure, the investigation must move beyond the trespassers and rioters
at the Capitol to the funders and organizers who still elude scrutiny. I hope
the Attorney General is moving swiftly.”
Garland’s Caution—and His
Democracy Dilemma
Caution and careful consideration of
evidence and precedent are trademarks of Garland’s approach to the law. His
dedication to the law and public service is beyond question: In 1989, shortly
after joining a private law firm, Garland decided to chuck it and took a
serious pay cut to join the U.S. attorney’s office in the District of Columbia,
where he prosecuted corruption, drug trafficking, and fraud cases. As a judge
on the U.S. Court of Appeals for the D.C. Circuit, Garland often sided with
liberal-leaning fellow judges in controversial cases. In a 2010 case, Garland
voted with a unanimous court to invalidate limits on contributions to
independent political groups. In 2003, he wrote the court’s ruling validating
Labor Department complaints against a company that exposed miners to coal dust.
In his unsuccessful effort to put Garland on the Supreme Court, Obama promoted
him as a reasonable moderate, and liberals and conservatives both found cause
to moan about his judicial record—right-wingers because he had voted to hear a
gun rights case, and liberals because of his support for a majority appeals
court ruling that declared federal courts lacked the jurisdiction to hear cases
disputing the legality of detaining alleged terrorists at Guantánamo Bay.
One case that Garland pursued aggressively
as a prosecutor before joining the appeals court was the prosecution of
Theodore Kaczynski, the mentally disturbed former math professor known as the
Unabomber, who committed 16 mail bombings that killed three and injured dozens
more over a period of nearly two decades. While a prosecutor, Garland led a
Unabomber task force that at one point asked The Washington Post or The
New York Times to publish Kaczynski’s 35,000-word manifesto, which
helped lead to Kaczynski’s arrest, though critics allege the main reason
Kaczynski was arrested was that his brother and sister-in-law recognized the
writing in the manifesto and contacted the feds.
Garland also played a key role in the
investigation of the 1995 bombing of the Alfred P. Murrah Federal Building in
Oklahoma City, traveling to the crime scene to supervise the case against
alleged bombing mastermind Timothy McVeigh. Impressively, McVeigh was caught
within hours of the attack that killed 168 people, and he was ultimately executed.
However, some critics charge that there were limits on how far Garland was
willing to dig into the backstory of the attack, and into contacts McVeigh had
with organized far-right militant factions. Critics said Garland avoided
digging into alleged contacts McVeigh had with foreign neo-Nazis and domestic
militants based at an Oklahoma camp known as Elohim City. The critics charge
that Garland sealed key documents and framed the OKC investigation as a “lone
gunman” scenario.
In his first year-plus as Biden’s attorney
general, Garland has regularly pursued policies and made decisions consistent
with his reputation for judicial caution. In one controversial decision nearly
a year ago, Garland’s department said it would continue defending Trump against
legal efforts by the writer E. Jean Carroll to go after Trump over defamation.
Carroll claimed that she was raped by Trump in a department store in the
mid-1990s. Trump denied this, asserting that Carroll was “not [his] type.” Carroll
sued Trump for defamation. But Barr’s Justice Department argued that Trump was
entitled to protection under an obscure law granting immunity against civil
litigation to federal employees under certain circumstances, and Garland’s
Justice Department said it would continue to defend Trump. Last year, the
department also persuaded U.S. District Judge Amy Berman Jackson to allow it to
maintain the secrecy of a section of a memo from advisers to Barr outlining
legal arguments supporting a March 2019 decision by Barr not to charge Trump
with obstruction of justice.
In other areas, Garland’s department has
been more assertive. Civil rights enforcement has been a sharp focus, with the
attorney general pushing forward with federal investigations of killing of African
Americans such as George Floyd and of alleged racism in multiple police
departments, including Minneapolis, Louisville, and Phoenix. The department
also filed lawsuits against the states of Texas and Georgia alleging that new
voter registration laws were discriminatory. Following a plea deal the DOJ made
with two of the three white men convicted of the murder of Black Georgia jogger
Ahmaud Arbery, Garland publicly appeared to tear up when asked about the case.
Recent public declarations from Garland, whose
spokespeople did not respond to multiple requests for interviews with him or
his top aides, regarding where the investigation is headed have been
portentous, but also ambiguous. In a publicly broadcast speech to Justice
Department officials before the one-year anniversary of the riot, Garland
explicitly promised: “The actions we have taken thus far will not be our
last.... The Justice Department remains committed to holding all January 6th
perpetrators, at any level, accountable under law—whether they were present
that day or were otherwise criminally responsible for the assault on our
democracy.... We will follow the facts wherever they lead.” After listing the
types of persons who have been threatened with violence by far-right activists,
ranging from election officials to airline crews, journalists, teachers,
elected officials, lawmakers, police, prosecutors, and judges, Garland noted
that there is “no First Amendment right to unlawfully threaten to harm or kill
someone.”
The core dilemma that confronts Garland is
this: He came in wanting to depoliticize the department. A laudable goal, after
the way Barr misled Americans about the Mueller report and all the moves Trump
made trying to enlist Justice in stealing the election. Depoliticizing the
department equals upholding the rule of law equals preserving democracy. Yet,
on the other hand, does depoliticization mean don’t do something that looks to
some as and will certainly be accused of being “partisan”? Even if a former
president broke the law? Hence, Garland’s dilemma. How does he best defend
democracy? By keeping the department out of partisan entanglements or by
following the law wherever it goes?
Said Laurence Tribe: “If Garland’s efforts
to depoliticize the department ultimately lead him to put the former president
and his inner circle above the law by never approving the indictment of Trump
and his co-conspirators in the attempted coup and the insurrection that
followed, then no doubt Garland would have undermined his own efforts by
allowing the subversion of democracy. But I have not yet concluded that this is
where Garland’s methodical approach will lead him or the country and continue
to believe that he is both smart enough and dedicated enough to democracy and
the rule of law, as well as sensitive enough to the running of the clock, not
to let events lead us to that tragic end.”
Whatever he decides, the decision will be
Garland’s alone. No attorney general in our recent history—arguably in our
entire history, given that no other former president has fomented a coup
against the United States of America—has faced such a momentous decision. The
country, indeed the world, will be watching.
Mark Hosenball, who recently retired from Reuters, has been on
the front lines of investigative reporting in the United States and Britain for
48 years.
