Government

Stop Blaming Merrick Garland For Donald Trump Still Being A Free Man

Not all horrible behavior is criminal.

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donald trump

(Photo by Drew Angerer/Getty Images)

There are a lot of reasons to criticize Merrick Garland’s tenure at the Department of Justice. Antitrust efforts are moving slower than many hoped — except when Garland can help his fellow Swifties. He didn’t reverse course on the DOJ’s abhorrent stance in the E. Jean Carroll case. And his DOJ went to the Supreme Court and asked to functionally eliminate Miranda rights. So it’s not been great.

But one thing that shouldn’t be pinned on Garland is the lack of a federal indictment of Donald Trump.

In “The Country Is Paying for Merrick Garland’s Failure to Prosecute Trump,” our old friend Elie Mystal airs his disdain for Garland’s leadership, blaming the AG for the fact that we’re a whole two years into the Biden presidency and the former president isn’t in prison yet. Though it’s not exactly clear how Garland was supposed to pull off this feat in that timeframe short of a railroading prosecution for generalized “badness.”

Trump is currently being investigated by Garland-appointed special counsel Jack Smith, though this is framed as too little too late. Wouldn’t not appointing a special counsel at all be the actual least a complicit Garland could do?

Garland has now passed the buck to special counsel Jack Smith, and the same people who told us that Bill Barr was going to be an honorable attorney general…

Literally no good faith human being uttered those words. Bill Barr got the job after making a case to Trump that he’d be willing to use that office to institutionally obstruct any obstruction of justice investigation and indulge in conspiracy theories. There’s hyperbole and then there’s comparing anything about this to Bill Barr.

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… or that Robert Mueller was going to be a dogged investigator…

Except he was! The Mueller report provides comprehensive evidence of obstruction and then explicitly says that he was not authorized to make a recommendation. BECAUSE HE WORKED FOR BARR. Suggesting that private citizen Mueller could drop federal charges on anyone over the head of the official who contracted him to make a recommendation is too much. Hate the game, not the player. That guy dropped a blueprint for action but he can’t magic himself the power to do anything about it. It would be wonderful if he could, but that’s not how that any of this works.

… or that Rod Rosenstein was going to stand up to the Trump White House…

See above. This is why the White House installed Barr as Rosenstein’s boss. The mere risk that Rosenstein might do that was enough for Trump to rewrite the org chart. Rod Rosenstein is a scumbag who probably wouldn’t have stood up to Trump, but even if he wanted to he ultimately had no authority to do so.

… now tell us that Smith is the perfect “closer” to bring Trump to justice.

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Maybe, maybe not. But it’s certainly better than all the other straw arguments in this sentence. Smith is the first person in this whole discussion whose authority doesn’t ultimately flow from Donald Trump himself. That counts for a lot. However, an even more compelling reason to think the Smith tenure could be different is that the classified documents investigation involves actual, identifiable federal crimes.

The problem with the Blame Garland movement is that there just wasn’t a particularly good federal criminal case against Trump before he started sending lawyers to falsely aver that he had no highly classified documents (other than trying to resurrect the Mueller investigation findings that already had their moment as the basis for impeachment — which I would agree could be an opening worth Garland pursuing).

So what are the crimes that Garland is supposed to have already tagged Trump with committing? Mystal champions the January 6 committee for gathering “all the information needed to bring charges against Trump.” And the Committee did recommend charges, but the thing is… none of them were all that strong.

Conspiracy to make a false statement might be the strongest of the recommended charges, as the record suggests that people were told to mislead if not outright lie under oath a lot in the aftermath of January 6. Does anything from the Committee pin those instructions directly on Trump though? There’s a reason mob bosses aren’t convicted in a two-year span. Someone much further up the chain is going to need to testify to a direct order before Garland could seek a Trump indictment.

While “conspiracy to defraud the United States” is pretty broad, a statute designed to keep defense contractors from ripping us off requires a bold prosecutorial overstretch to cover Trump lying about the election. Pressuring Georgia to “find” more votes and potentially cheering on fake elector schemes are colloquially frauds but they’re also fundamentally state law issues because even without going all the way to the bonkers reading of the independent state legislature theory, states really control that process.

Obstruction of an official proceeding certainly applies to Trump’s minions who stormed the Capitol, but does Trump himself fall under this language? For that matter, consider the big kahuna of recommended charges — 18 U.S. Code § 2383:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

“Incites” treads on shaky constitutional ground. Both the obstruction and rebellion charges would require arguing that a politician encouraging supporters to protest would be criminally liable if those people then break the law. Given that Trump did not explicitly say, “attack the police, break into the Capitol, and start defecating,” any reading of incitement that would stretch to ensnare Trump would declare open season on arresting anyone who says “Black Lives Matter” any time a protest even tangentially related to those causes ends with damage. We’ve already seen that precise case go to the Supreme Court!

Telling Kevin McCarthy that you think maybe the rioters are right isn’t really “aid or comfort.” Could it be aid to refuse to send in the National Guard earlier? Maybe. I can’t imagine any prosecutor feeling all that good about going into court with that one.

To get to Trump through any of these charges, Garland would need evidence that Trump directly falls under the language in these statutes that just isn’t there right now. Perhaps the ongoing investigations will get to the point where they find Trump texting directly with rioters, but until then the charges recommended by Congress don’t look like winners. There’s a statutory gap that doesn’t really contemplate “presidential dereliction of duty.”

Contrast all this with the statutes flagged in the warrant in the documents case, citing “contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, and 1519.” The documents found in Trump’s possession after his attorneys claimed that everything was searched and turned over is likely enough to make a case under a couple of these statutes. More is probably required for § 793, but the raid already got the government halfway there. The aforementioned false statement charge could work its way into this fact pattern too.

Again, Jack Smith has a better chance of delivering a report that ends in the DOJ indicting Trump because he’s looking into actions that track the specific text of federal criminal statutes far closer than anything out of the January 6 Committee. Maybe the FBI’s reticence to raid Mar-a-Lago delayed this investigation a bit, but even without securing the physical evidence, these potential crimes didn’t appear to be obvious until mid-2022, so it’s not DOJ’s fault that they didn’t launch a broadside over classified documents on day 1 in 2021.

The Mystal piece cites a generalized grievance that Trump represents a threat to America who has already proven that he’s willing to wink and nod toward insurrectionists. Could not agree more. But indicting general abhorrent behavior is not a model for a criminal justice system.

The Country Is Paying for Merrick Garland’s Failure to Prosecute Trump [The Nation]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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