Tuesday, January 11, 2022

NEW INC. MAGAZINE COLUMN BY HOWARD TULLMAN

 

Raise Prices at Your Own Risk

Sure, there's plenty of cover right now: supply chain issues, tight labor and a pandemic. But your customers are not going to forget being gouged.

 

BY HOWARD TULLMAN, GENERAL MANAGING PARTNER, G2T3V AND CHICAGO HIGH TECH INVESTORS@TULLMAN

Weary consumers who are already overwhelmed and angered by the rising prices of everything are starting to realize that it's no longer a matter of supply chain congestion, excessive "free" money from the Fed, the rising wages of "essential" employees, or the unseen but oppressive hand of inflation that's making their lives more painful and their pocketbooks lighter. As much as Elizabeth Warren berates the greedy corporate leaders and, while President Biden sics the antitrust lawyers on them and the media dutifully chimes in, the root causes of rising prices are far more local in nature and far simpler to explain.

It's not the Fed or Ford Motor or Dr. Fauci jacking up prices at the grocery store and making a meager meal at the corner diner cost as much as the fine fare at a fancy French restaurant. It's Fran, your friendly pharmacist, and Harry at the hardware store, and even the guy at the bagel shop down the street who is making sure that your bucks don't buy as much anymore. Every business in town is taking a joy ride on the margin expansion merry-go-round and no one wants the music to end.

While the media's begging you to shop local, and Amex is stoking Small Business Saturdays, the truth is that it's not the Saudis or some other nasty boogeyman but your neighborhood merchants who are so hooked on the COVID inflation gravy train that they can't seem to quit gouging everybody and their brother every chance they get. The "new normal" sadly seems to be "grab as much as you can get" while the gettin's good and before the golden goose flies away. Price hikes, scarcity allocations, surcharges for pickups and deliveries and all sorts of other things are everywhere you look, and many are buried where you can't even see them. More importantly, whether the business is large or small, each one of them thinks that there's no reason in the world to take a step backwards and reduce prices.

But consumers have longer memories, far more alternatives, and considerably less patience these days than these clueless mercenaries imagine. I expect - just like the much-abused tenants of the world who will soon enough extract their pounds of flesh from landlords who basically did little or nothing for them through the two years of the pandemic - that once the dust settles, what little care, concern or loyalty anyone had for the little business down the block will be long gone. We're going to be seeing Amazon and Walmart vans up and down the block all day long, every day, for a long, long time.

If you'd like for your business to be on the right side of this particular nasty storm - morality aside - now's the time to take a careful look at your own pricing and your going-forward strategy and to do two important things: (a) make sure the numbers still make sense for your business and your customers; and (b) make sure you communicate and carefully explain the reasons for price increases to your customers before you get lumped into the pile with all the other penny-wise and pound-foolish pigs who are hoping that their regulars never catch on. Most of the justifications and rationales that worked during the early, intense phases of the pandemic just won't cut it much longer and businesses are running out of excuses and people to blame. If you want to do better, make sure your explanations make sense. You don't want to be the guy who blames the band because he's a lousy dancer.

Here are the three most critical parts of the conversation.

First, a transaction is not a trade.  

A transaction is a promise of solid value for a fair price. No conditions, no add-ons, no expectations, and no strings. Nothing is expected in return - there's no quid pro quo - no exchange of data, personal information, lengthy commitments.  If the price doesn't make economic and business sense for both parties, it's not going to build a real connection and a continuing relationship based on actual mutual advantage, and therefore it's not worth doing. Sure, you're in business to make a profit, but only if you hold up your end of the bargain and deliver the goods. And, even today, you still get what you pay for and if the seller isn't getting paid enough - given his or her real costs and expenses - to provide a high quality, professional product or service, then ultimately everyone loses. This is not something to hide or evade; it's something you need to explain.

Second, a transaction is not a one-time offer, a short-term deal, or some big favor.  

While everyone's in a hurry to get back to business as usual (as much of a fantasy as that may be), there's no long-term upside to trying to quickly build back your business with gimmicks, fire sales, discounts, "extra" bucks or points because: (a) a sales gimmick sends the wrong message about longevity and continuity; (b) consumers readily see through insincere attempts to reduce COVID-inflated prices simply by returning them to pre-pandemic levels as if that's some kind of substantial benefit to them; and (c) it's never smart to try to build volume and traffic simply through discounts because that trains your customers to buy on price rather than brand or value.

Third, you've only got one good name, reputation, and brand to bet on

At the end of the day, your brand and your reputation aren't transitory and fluid. They're promises of the values you're committed to honoring all the time. Honor never grows old - it's always about protecting the worthy and important things that need and deserve to be defended whatever the cost. If you're not willing to extend yourself for your clients and customers in the tough times when all these things are being tested, then they're not essential parts of your mission and purpose, they're nice-to-have hobbies to brag about in the good times. We're all ultimately selling trust - even as that gets to be harder and harder to do every day - and people need to see that we can be depended on and relied upon to act honorably and appropriately in good times and in bad because it's the right thing to do. Customer trust is hard to win and easy to lose.

And, just to be clear, your decisions and your behaviors are also observed and evaluated every day by your own employees - they're customers and consumers too. The very last thing that your business can afford is for them to lose faith in you and what you're all trying to accomplish. The best employees today want to do good work, want to actually help others, and want to be proud of the way they do their work and the results. Your customers will never be happier than your most unhappy employee.

Hollywood's New Rules

 


Hollywood's New Rules

The old boys club is dead. But a new one—with its own litmus tests and landmines—is rapidly replacing it. 'This is all going to end in a giant class-action lawsuit.'


Peter Kiefer and Peter Savodnik

Jan 11

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A few years ago, the editor-in-chief of The Hollywood Reporter pitched a story to the newsroom. He had just come back from lunch with a well-known agent, who had suggested the paper take a look at the unintended consequences of Hollywood’s efforts to diversify. Those white men who had spent decades writing scripts—which had been turned into blockbuster movies and hit television shows—were no longer getting hired. 

The newsroom blew up. The reporters, especially the younger ones, mocked the idea that white men were on the outs. The editor-in-chief, normally self-assured, immediately backtracked. He looked rattled.

It was a missed opportunity. The story wasn’t just about white guys not getting jobs. Nor was it really about the economics of Hollywood. It was about the stories Hollywood told and distributed and streamed on screens around the globe every day. It was about this massively lucrative industry that had been birthed by outsiders and emerged, out of lemon groves, into a glamorous, glitzy mosh pit teeming with chutzpah and broken hearts and unbelievable success stories that had made the American Dream a real, pulsating thing—for Americans and billions of other people who thought that if you could imagine something, anything, you could will it into being. It was a story about who we aspired to be.

After the meeting, a reporter approached another editor about pursuing it. The editor told the reporter to drop it. No one, he said, at The Hollywood Reporter—one of a handful of trade publications that covers the ins and outs of the entertainment industry—was going to risk blowing up their career over this. 

The “explosion of woke,” as one longtime producer put it, didn’t come out of nowhere.

Hollywood had always pushed boundaries—from the 1947 “Gentleman’s Agreement,” which confronted antisemitism, to “Guess Who’s Coming to Dinner” (1967), which tackled interracial marriage, to “All in the Family” (1971-1979), which grappled with race and women’s liberation. The original run of “Will and Grace” (1998-2006), did more to advance the cause of gay marriage than anything else pre-Obergefell.

And then there were the villains: The vast majority—from the Terminator to Hannibal Lecter to Gordon Gekko—were uber-white: an Austrian (robot), a Lithuanian, a WASPy, pinstriped capitalist. (For the insider’s list, see this from The Hollywood Reporter.)

But it wasn’t until 2015—when the #OscarsSoWhite controversy engulfed the 87th Academy Awards—that studio chiefs and producers really started to rethink how they did business. This gained momentum in 2016, and even more in late 2017, with #MeToo.

Then came George Floyd, and, in the summer of 2020, everything that had been happening in slow motion started to happen much faster. 

The Academy of Motion Pictures Arts & Sciences—the industry’s central nervous system—had been founded in 1927, and now it had 8,469 voting members. It had tried over the years, and especially since Donald Trump’s election, to catch up with the zeitgeist, inviting into its ranks a record number of new members who were black, Latino, women or foreign-born. 

But that wasn’t going to cut it any longer.

So, in September 2020, the Academy launched its Representation and Inclusion Standards Entry platform (or RAISE). For a movie to qualify for Best Picture, producers not only had to register detailed personal information about everyone involved in the making of that movie, but the movie had to meet two of the Academy’s four diversity standards—touching on everything from on-screen representation to creative leadership. (An Academy spokesperson said “only select staff” would have access to data collected on the platform.) 

The Academy explained that movies failing to meet these standards would not be barred from qualifying for Best Picture until 2024. But producers are already complying: In 2020, data from 366 productions were submitted to the platform.

Meanwhile, CBS mandated that writers’ rooms be at least 40 percent black, indigenous and people of color (or BIPOC) for the 2021-2022 broadcast season and 50 percent for the 2022-2023 season. ABC Entertainment issued a detailed series of “inclusion standards.” (“I guarantee you every studio has something like that,” a longtime writer and director said.) 

To help producers meet the new standards, the filmmaker Ava DuVernay—who was recently added to Forbes’ list of “The Most Powerful Women in Entertainment” along with Oprah Winfrey and Taylor Swift—last year created ARRAY Crew, a database of women, people of color, and others from underrepresented groups who work on day-to-day production: line producers, camera operators, art directors, sound mixers and so on. The Hollywood Reporter declared that ARRAY Crew has “fundamentally changed how Hollywood productions will be staffed going forward.”

More than 900 productions, including “Yellowstone” and “Mare of Easttown,” have used ARRAY Crew, said Jeffrey Tobler, the chief marketing officer of ARRAY, DuVernay’s production company. Privately, directors and writers voiced irritation with DuVernay, who, they said, had exploited the “post-George Floyd moment.” But no one dared to criticize her openly. “I’m not crazy,” one screenwriter said.

Of course, Hollywood, like many industries, does have a clubiness about it. And pretty much everyone on the inside insists it should open up to those who had, for decades, been kept out. But the heavy-handed mandates, the databases, the shifting culture—in which pretty much all white men were assumed to have gotten their jobs because they had the right tennis buddies or ZIP code or skin color—raised the possibility of a new kind of clubiness. When asked whether ARRAY Crew was just replacing one kind of exclusion with another, Tobler sidestepped the question, saying the organization had sought to “amplify underrepresented professionals.”

But the result has not just been a demographic change. It has been an ideological and cultural transformation. We spoke to more than 25 writers, directors, and producers—all of whom identify as liberal, and all of whom described a pervasive fear of running afoul of the new dogma. This was the case not just among the high command at companies like Netflix, Amazon, and Hulu, but at every level of production.

How to survive the revolution? By becoming its most ardent supporter. “Best way to defend yourself against the woke is to out-woke everyone, including the woke,” one writer said. Suddenly, every conversation with every agent or head of content started with: Is anyone BIPOC attached to this? 

The old-timers accustomed to being on the inside—and the (non-BIPOC) up-and-comers afraid they’d never get there—were one-part confused, one-part angry, and 10,000-parts scared.

“Everyone has gone so underground with their true feelings about things,” said Mike White, the writer and director behind the hit HBO comedy-drama “The White Lotus.” “If you voice things in a certain way it can really have negative repercussions for you, and people can presume that you could be racist, or you could be seen as misogynist.”

Howard Koch, who has been involved in the production of more than 60 movies, including such classics as “Chinatown” and “Marathon Man,” and is the former president of the Academy of Motion Pictures Arts & Sciences, said: “I’m all for LGBT and Native Americans, blacks, females, whatever minorities that have not been served correctly in the making of content, whether it’s television or movies or whatever, but I think it’s gone too far. I know a lot of very talented people that can’t get work because they’re not black, Native American, female or LGBTQ.” 

Another writer, who, like most of the writers we interviewed, was afraid to speak openly for fear of never working again, said: “I get so paranoid about even phone calls. It’s so scary. My close friends and my family are just like, ‘Don’t say anything.’ It is one of those things, ‘Will I be able to sleep at night if I say anything?’ Getting jobs in this town is so hard, and I’m very grateful to have a great job. If there’s any so-called ding on my record, that would just be an argument against hiring me.” 

It is, said Sam Wasson, the author of “The Big Goodbye: Chinatown and the Last Years of Hollywood,” not so different from the McCarthy era, when everyone in Hollywood professed to believe something that they thought everyone outside Hollywood—the country, their audience—believed. “Hollywood was never anti-Communist,” Wasson said. “It just pretended to be. In fact, Hollywood was never anti- or pro- anything. It was show business. There’s no morality here.”

That amorality, coupled with a finely tuned sense of what the audience is hungry for, what’s trending, has left Hollywood more susceptible to the vagaries of the culture war. 

“Now, they’ll just say, ‘Sorry, diversity quotas. We’re just not allowed to hire you,’” said a 48-year-old white, male comedy writer who was recently dropped by his agent. 

Zack Stentz, a writer and producer who was a screenwriter on “Agent Cody Banks” and the Marvel movie “Thor,” said, “A really toxic thing that does happen is that agents will tell their clients, especially white clients, when they don’t get a job, ‘Oh yeah, it’s because they had to hire a minority writer.’” Stentz added: “Even if it’s true, it’s not a helpful thing to say.”

One showrunner, afraid to send his emails to us out of fear of them accidentally winding up on the wrong screen, agreed to show us correspondence with agents, writers, and studio chiefs that capture the new thinking at the highest levels of the Hollywood food chain.

Sitting in his office, in a casita behind his house and next to the pool, we scrolled through the emails on his laptop:

“This one a dead end — they are going to limit search to women and bipoc candidates”

“How tied to hiring him are you? There are some internally that don’t like the idea of hiring a white guy. I wish I had a better way to frame it. Hate this shit.”

“Studio now telling us this job must go to a female / bipoc writer. Sorry — it sucks”

When we wrapped up, the showrunner said: “This is all going to end in a giant class-action lawsuit.”

The creatives who embrace this agenda think all of this is laughable, a lie, a rationalization. “HI AGENTS AND MANAGERS of white folks in this industry,” the actor and director Natalie Morales tweeted in November. “For fucks sake, please stop blaming ‘diversity hires’ for why your client isn’t getting a job. It’s either that you’re not working hard enough or that they’re not good enough. Be honest with them. You are harming us.”

Rochée Jeffrey, a black writer on “Grownish,” “Santa Inc.,” and “Woke,” said: “I don’t care if white people aren’t comfortable because black people are uncomfortable all the fucking time. I can’t tell you how many times I’ve had to bite my tongue so as not to offend white sensibilities, so I don’t give a shit if they’re nervous.”  

The showrunner said that the new politics is making it hard to get work done. He added that Human Resources departments at the studios and streaming services are awash in complaints directed at white, male showrunners just for doing their job. “It’s gotten to the point where I won’t give notes on a script any longer to a woman or person of color.”

Stentz said that he hasn’t run into any problems with “young millennial staffers with more, shall we say, of a social justice emphasis.” But, he added, “I know other people have had less happy experiences.”

The writers’ room is supposed to be smart, funny, nasty, a little bawdy, the kind of place where people can make jokes and riff and wonder aloud and vomit out ideas that might become an unforgettable scene. Another showrunner in his mid-fifties (white, male, unfortunately) said: “You’re not allowed to pick your staff anymore, and studios won’t let you interview anybody who isn’t a person of color.”

He added that the culture of documenting even the slightest of slights makes him anxious. “I’m sitting in a room trying to run a show with a collection of people I don’t totally trust.”

The politicization of content production, creatives said, was going to be the industry’s death knell. “Especially this past year, ideology has become more important than art,” Quentin Tarantino said in June on Bill Maher’s show. “It’s like ideology trumps art. Ideology trumps individual effort. Ideology trumps good.”

Exhibit A: “Woke.” 

The comedy series, which premiered on Hulu in September 2020, should have been the statement on America right now. It’s about a black cartoonist who is awakened to systemic racism after a run-in with the cops.

The show started off on the right foot: the showrunner, Aeysha Carr, and the writers room she oversaw, delivered a strong batch of early scripts, according to several writers on the show.

Then the producers weighed in. “The notes were all so sanctimonious,” one writer said. “It was never supposed to be as serious as it was. We wanted a thought-provoking show that made fun of woke culture and explored notions of what a black artist’s life would be like in San Francisco among white liberals. But we could only punch down at the safest targets”—white men. 

The irony was not lost on anyone: The black writers, starting with Carr, were more willing to take risks and poke fun at antiracist orthodoxy.

This led to creative differences, and soon, Carr, a black woman, was out. She was replaced by Zander Lehmann, a white man.

Then, Lehman was out, too—replaced by Jay Dyer, who is black. “Jay was brought on toward the end for optics,” a black writer on the show said. “Any black guy would do. That was the energy I got.” (Carr and Keith Knight, a co-creator of the semi-autobiographical show, declined to comment.)

The quality of the scripts suffered, and the show, which premiered in September 2020, landed a 53 percent “green splat” average audience review on Rotten Tomatoes

In late 2020, Hulu renewed “Woke” for a second season. It also replaced Dyer with a fourth showrunner—Anthony King, who is white. (King did not reply to an email seeking comment.)

Kevin Parker, a black talent manager at Artists First, said the skeptics miss the point. “This whole diversity thing—it’s about money,” Parker said. Artists First represents some of the most successful black people in Hollywood, including Jordan Peele, Tiffany Haddish, Regina Hall, Kenya Barris, the creator of “Black-ish,” and Marshall Todd, a co-creator of “Woke.” Recently, the firm moved from its old digs, in Beverly Hills, to a bigger office in Century City. “It’s good business to tell more stories from different perspectives, and that’s all this really is,” Parker said.  

Shows like Donald Glover’s award-winning “Atlanta,” Issa Rae’s “Insecure” and Michaela Coel’s “I May Destroy You” are all part of this new investment. The first two episodes of “Atlanta,” which aired September 6, 2016, reeled in 1.6 million viewers, surpassing the record for a basic cable comedy premiere, previously held by “Inside Amy Schumer.” “Insecure” just wrapped up a five-season run.

“Maybe it’s 15 percent about the belief that it will bring more people into viewing content, and 85 percent about the fear of being attacked on social media or in places like the Hollywood press or The New York Times,” a writer and producer said. “You’ve got to be insane not to have at the forefront of your mind all of these racial and gender and trans issues when you’re writing something. You have to worry about the impact that everything you do will have on your career. And that has an obvious chilling effect on creativity.”

We emailed Franklin Leonard, the founder of the Black List—the point of which is to elevate voices that might otherwise not get elevated—to talk about the industry’s marked shift: What was driving it? And where did it go next? He declined to comment.

There was a feeling, among those who didn’t hew to the new orthodoxy, that it was becoming harder not only for certain people to find work but for a certain kind of content—ballsier, more provocative—to get made.

They were scared of what was happening. The fear, one prominent director said in an email, is “the audience stops trusting us. They begin to see us as a community twisting ourselves into a pretzel to make every movie as woke as possible, every relationship mixed racially, every character sexually fluid, and they decide that we are telling stories set in a fantasyland instead of a world they know and live in. If that happens, and they decide to throw themselves instead into video games 24/7, we will lose them.”

Movies and shows that were once widely acclaimed but are now verboten, writers and directors said, included “Blazing Saddles,” even though it was co-written by Richard Pryor; “The Bad News Bears,” even though it featured a multiracial cast; “Tootsie,” because transgender activists; and “Rocky” (“bad guy CANNOT be black,” a director explained in an email). Nor would “The Wizard of Oz” get greenlit. (“The munchkins? Forget it,” the director said). Nor would “All in the Family,” probably the most influential show of the 1970s. (“Archie Bunker”—the main character—“is basically a Trump voter,” a producer explained.) “South Park,” which debuted in 1997, has been grandfathered in. “Otherwise, no way,” another producer said.

All of which may explain the very strange story of the brand new $484 million Academy Museum of Motion Pictures. 

In September, the Academy threw a gala celebrating the opening of the museum. Attendees included Sophia Loren, Guillermo del Toro, Jennifer Hudson, Issae Rae, Orlando Bloom and Katy Perry. Lady Gaga performed. Vogue covered it the way Vogue covers things. Ted Sarandos, a co-CEO of Netflix and the chair of the museum’s board, gave a speech. (In what is now common practice in places like Los Angeles, an elder from the local Tongva tribe kicked things off with a blessing and “land acknowledgement.” The sanitation worker whose job it was to clean the podium between speakers dutifully wore his mask. The speakers did not.)

The museum features an iconic, spherical 33,000-square-foot theater designed by Renzo Piano, stunning exhibitions, and a two-story restaurant called Fanny’s, named after Fanny Brice, the actor and comedienne.

But, oddly, it’s missing any mention of the small band of mostly Jewish emigres from Eastern Europe, who created the film industry. The people without whom there would be no entertainment industry. 

In today’s climate—in which inclusion and diversity are said to be so important—it was an especially ironic omission: The Jews were excluded from almost everywhere. Their success signaled the inclusivity and possibility that only Hollywood could afford them. The rise of the industry’s founding fathers should have been an inspiring origin story around which everyone in the community could rally. The link between then and now seemed obvious.

Most of the media that reported on the museum missed this. (Sharon Rosen Leib, writing in the Jewish newspaper The Forward, did not.) It was as if they wanted to pretend that huge chunks of Hollywood’s past hadn’t been airbrushed out.

More to the point, it was as if they wanted to forget that Hollywood was not the cartoon it was being made out to be, suggested Sam Wasson, the author. “Hollywood, at its best, was meritocratic,” said Wasson, who wrote about the museum for Airmail. “If you don’t believe me, just watch the movies of the great filmmaking eras.”



Howard Koch, who ran the Academy when it greenlit the museum, said the museum’s higher-ups had been made aware of their oversight. “Let me say that that wrong will be righted very soon,” he said. (This appears to be a six-week program on Jewish, Austrian emigres who fled the Nazis to make movies in Hollywood.)


It is important not to lose sight of the backdrop against which all of the above has happened. On this, pretty much everyone agrees.

Over the past decade, the streaming services have upended old business models and imposed a new ruthlessness on an industry that was already pretty ruthless.

For years, the real money in Hollywood came from the television channels that broadcast reruns and old movies; residuals meant creatives were paid handsomely. But with the rise of Netflix, Amazon and other streaming services, that model collapsed. And the vast majority of creatives had to make do with less.

Now, most people in the industry do not earn enough to support a family of four in Los Angeles. As money has gotten tighter, people have gotten angrier, and things have gotten uglier. “I’d say all that probably expedited the radicalization,” a longtime Hollywood creative said of the shifting marketplace.

Mike White said that it is a lot easier for Hollywood to talk about race than class. We asked him if the two college women in “The White Lotus”—which revolves around a handful of guests at a Hawaiian resort—were inspired by the twentysomethings starting out in writers’ rooms in Hollywood. He said he didn’t know. (White wrote “The White Lotus” by himself.) 

“But yeah,” White said, “young girls are kind of a good vehicle to explore that, because it has this sense of trendiness and lingo and hip speak mixed with this idea of who’s cool and who’s not cool and has very little to do with—they have very little skin in the game. That’s the essence of what I find disturbing about some of the stuff on the left. Does this have anything to do with making life better for anyone, or is this just a game? Is this just about making you feel superior?”

Peter Kiefer and Peter Savodnik are both writers based in Los Angeles. Peter Kiefer’s latest story, for Los Angeles Magazine, was about the ultimate Twitter power broker. Peter Savodnik’s most recent story for Common Sense was about Havana Syndrome.

 

Sunday, January 09, 2022

WE CAN'T LET THESE SCUMBAGS GET AWAY WITH IT

 

Investigate Them

The DOJ must examine the roles of government officials, including former President Donald Trump, in the Capitol insurrection. To look away is fantastically dangerous.

By Neal K. Katyal

JANUARY 6, 2022

 

About the author: Neal K. Katyal is the former Acting Solicitor General of the United States and a professor of law at Georgetown University.

 

In the year since the Capitol, and American democracy, was savagely attacked, the beloved institution where I worked during earlier parts of my career, the Department of Justice, has been eerily silent on many events of that day. True, the department has done a terrific job at prosecuting some of the rank-and-file attackers, but thus far it has made no peep about investigations into former President Donald Trump, let alone his coterie of enablers, such as the former DOJ official Jeffrey Clark and former White House Chief of Staff Mark Meadows, or his ostensible attorneys, John Eastman and Rudy Giuliani. This investigation into high-level wrongdoing is the greatest test an attorney general could face. And right now, despite what he said in yesterday’s generally good speech, it is worth worrying about whether Merrick Garland is failing that test.

Caveats abound. Perhaps Garland’s critics have it wrong, and the silence about whether he is investigating Trump and his enablers is actually evidence of his supreme competence. Garland dropped hints in his speech yesterday that could suggest the existence of such an investigation, for example, when he said the department “remains committed to holding all January 6 perpetrators, at any level, accountable.” We are talking about a legendary public servant, someone who steered the Oklahoma City–bombing investigation to success as a Justice Department lawyer and later, in his two decades serving on our nation’s second-highest court, was never reversed once by the Supreme Court. Criminal investigations are generally secret, and perhaps what is going on is that Garland has proceeded apace, just not publicly. If so, the critics are premature, and Garland is doing exactly what he is supposed to do.

But what if that isn’t right? There is so far zero evidence of an actual investigation into Trump and his advisers. It’s been an entire year, and the governing U.S. Attorney’s Manual, which establishes the rules for federal prosecution, says, “When the community needs to be reassured that the appropriate law enforcement agency is investigating a matter … comments about or confirmation of an ongoing investigation may be necessary.” Moreover, if such an investigation were happening, it is likely that we would have learned of it by now, either through leaks or an interviewee saying something (or someone trying to block the inquiry through a public lawsuit, as the Trumps have done in New York). Law-enforcement officials know you can’t easily start such interviews a year or more after the fact—evidence disappears (a known issue with Trump folks) and memories fade. So it is very much worth worrying about whether the caution Garland cultivated as a judge—for you don’t sit on the nation’s second-highest court for two decades and avoid reversal without a heaping amount of caution—is driving his decision making today. If so, what would be the harm in “moving on” from what happened, as many top Republicans have argued?

Here’s the harm: The essence of the rule of law is to treat like parties equally. That’s why Lady Justice appears blindfolded, because she is to dole out justice impartially. I teach my criminal-law students that this is a “same yardstick” principle—what law is, at bottom, is a command to judge people according to the same yardstick, whether you like them or not. And that means that if there is serious evidence of crime, you don’t look the other way, no matter how hard prosecution may be. At the same time, that principle doesn’t mean Garland ought to be announcing criminal charges against Trump and his pals right now. Merrick Garland is the attorney general, not Santa Claus. It merely means that people, including high-ranking government officials, need to be interviewed and documents examined to determine whether probable cause exists. The yardstick principle asks us to pretend that those responsible were Democrats, and to use that thought experiment to decide whether an investigation is warranted.

When it comes to January 6, Attorney General Garland must realize that this yardstick points in a clear direction. As one senior government official put it, “There is no question—none—that President Trump is practically and morally responsible for provoking the events of the day. No question about it. The people who stormed this building believed they were acting on the wishes and instructions of their President … The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things.”

Moreover, given the public record already available—including evidence of “war rooms” at the Willard Hotel, bogus legal memos that circulated among senior government leaders, and even a member of Congress who is known to have worn body armor that day—it’s very hard to see how an investigation into all of this wouldn’t be required. To fail to investigate government officials, including the former president, who had to know that the attempt was to interfere with the counting of the vote, to say nothing of its potential for accompanying violence, is fantastically dangerous. The whole point of criminal law is to provide societal condemnation of evil acts and to deter them in the future. If government leaders and their private army of advisers can get away with encouraging a mob to, in 2021, stop one of our nation’s most solemn functions, the counting of electoral votes, what is to stop them from trying again in any other year?

Fortunately, criminal law provides serious sanctions for such behavior. It’s a crime, punishable by 20 years in jail, if someone “corruptly … impedes any official proceeding, or attempts to do so.” That’s just one of several possible laws at issue, but this one happens to have been upheld already by three different federal judges in criminal cases of those who attacked the Capitol on January 6. Two of those three judges were appointed by Trump.

The special committee in Congress examining these events can of course bring certain facts and behavior to light. But Congress is a poor man’s substitute for the awesome investigatory powers of the Justice Department. The DOJ’s prosecutors and agents know exactly how to conduct a criminal investigation, and have an array of law-enforcement tools available to them. And though Justice Louis Brandeis was right about sunlight being a disinfectant, when the microbes attack our democratic lifeblood—the functioning of elections—mere transparency is not going to be enough. It will take jail.

Our political system is based on the belief that an elected leader would not abuse their powers to stay in office. Entire fields of law are governed by the idea that government officials should not be second-guessed, and that their actions are presumed to be regular and entitled to deference. For the first 233 years of our republic, that view largely made sense, as presidents didn’t attempt to gain office through trying to nullify the public’s votes. But a world in which presidents do that sort of thing is markedly different: It allows someone to wrongfully gain the presidency, and then to wield the very same massive set of powers as their predecessors. That is why this investigation is so different from any other. Nothing less is at stake than protecting the architecture of the U.S. government. Right now, members of Congress who look complicit in the January 6 attack are refusing to cooperate with the congressional investigation, emboldened by their belief that there is no serious risk of Justice Department prosecution. A DOJ investigation would change that. It speaks to Attorney General Garland’s character that he has handled the investigation with so much tact. But we are at a national crossroads. If Garland doesn’t speak out about the investigation’s scope, the other guys will.

Oh, that senior public official who said there was “no question” about Trump being “practically and morally responsible” for the January 6 attack? His name is Mitch McConnell. And although he voted to acquit Trump of impeachment, he said that vote was solely because of his belief that Trump, as a former president, could not be impeached under our Constitution. But, he said, “President Trump is still liable for everything he did while he was in office, as an ordinary citizen … He didn’t get away with anything yet—yet. We have a criminal justice system in this country.”

It’s now up to Merrick Garland to run a criminal investigation to make sure that Trump and his advisers don’t get away with anything ever—ever.

Neal K. Katyal is the former Acting Solicitor General of the United States and a professor of law at Georgetown University.

 

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