It's the Time of the Season for Garland
The midterms are over. Will the Attorney General indict the criminal FPOTUS?
Merrick Garland, your hour is nigh.
Election Day has come and gone. So has the 60-day pre-election period during which it is the policy of the Department of Justice not to indict politicians running for office.
Not only that, but all across the country, voting went off without a hitch. Notwithstanding a few wackadoodle Kari Lakers with crucifixes in Maricopa County, the fears of violence at the polls, of voter intimidation by MAGA militia, proved unfounded. Not only that, but fascism was decisively defeated at the ballot box. Election deniers got their asses kicked. Turns out, Americans—and young Americans in particular—like this thing called democracy.
How does this relate to the DOJ? There is a theory floating around that Garland is reluctant to indict Trump because he’s afraid the resulting social unrest could start a bloody civil war. We now know that the “Americans will riot if Trump is denied” rationale, like the “red wave at the midterms” narrative, is a bullshit MAGA fantasy, unfounded in reality. The ballot box—the only poll that matters—proved it. As Mary Trump and many other commentators have pointed out, Americans will take to the streets if Donald Trump is indicted—but to celebrate, not to protest.
This isn’t hard to understand: Donald John Trump is a filthy criminal, and in the United States, no one is supposed to be above the law—especially a former president. Setting aside the many crimes he committed before taking office—crimes, including rape and sexual assault, that the mainstream media blithely ignored in its coverage of him in 2015-16—FPOTUS had himself a veritable crime spree in the White House. There were the highly lucrative emoluments violations. There was the serial obstruction of justice laid out in the Mueller Report, which was intended to be a blueprint for indictment. There was the attempted extortion of Volodymyr Zelenskyy of Ukraine (which seems like a much bigger deal now) that led to Impeachment #1. There was the sabotage of the pandemic response resulting in over a million dead Americans. And there was the insurrection, the fucking coup attempt, which, as the January 6th Committee hearings have made clear, was Trump’s doing. To not indict Trump would be an abrogation of Garland’s duty as the Attorney General of the United States, and make the Justice Department, already corrupted by Jeff Sessions, Matthew Whitaker, and Bill Barr, a laughingstock.
And yet the nation’s chief prosecutor doesn’t seem to be in any great hurry to nab the nation’s chief crook. Garland did not immediately name a special counsel to investigate Trump’s crimes, as I and many others called for when he took the job in the spring of 2021. He didn’t try to contest the pardons of Roger Stone, Paul Manafort, Steve Bannon, and Mike Flynn. Like Congress, he chose to punt on the Mueller Report. There has been no movement at all on the sabotage of the pandemic response, or the gobs of PPP money doled out by Jared Kushner and Steve Mnuchin, both of whom benefited from Saudi largesse as soon as Trump’s lone term ended. (Kushner, like Erik Prince, seems immune from criminal prosecution, for reasons beyond my understanding.) And the AG seems cool with letting the states go after Trump for election interference. Meanwhile, the one Trump guy the DOJ did charge, Tom Barrack, was found not guilty—so can we please retire that stupid meme about Garland’s perfect conviction rate?
To the AG’s credit, the Justice Department is slowly, meticulously moving up the ladder in its prosecution of the January 6th insurrectionists. In his (too-rare) public statements, Garland has said all the right things about the DOJ’s work on that case. And “seditious conspiracy” is a major charge. Even so, we are still on the trial of the Oath Keeper in the eyepatch—not what I was hoping for almost two years after the besieging of the Capitol. Steve Bannon still spews garbage on his podcast. Roger Stone gloats. Mike Flynn lays the groundwork for further sedition. Alex Jones is broke but not under indictment. Patrick Byrne, Sidney Powell, and Rudy Giuliani have yet to be charged—the DOJ had Rudy’s phones but somehow didn’t find enough to indict him—and Donald Trump spent Saturday night at his daughter’s wedding, not in some lonely cell at ADX Florence.
Intellectually, I understand why this is taking—and why it must take—so long. I know that prosecutors at the DOJ are working long hours at this thankless job. I know that enormous progress has been made. And I know that Trump’s entire legal strategy is to delay, delay, delay. But from the outside, it feels like inactivity. It looks like lack of urgency. And part of Garland’s job, it says here, is to manage public opinion. He would disagree, I’m sure, as would about half of Legal Twitter, but the fact that said Legal Twitter is constantly arguing about whether or not Garland sucks means that he’s failed in the PR aspect of his job. Because here’s the thing: he settles things down when he speaks. As LB and I have been saying for almost two years now, he should talk to us more often—certainly until he perp-walks at least one member of Trump’s inner circle (Bannon’s recent conviction for contempt of Congress, which Garland seemed reluctant to pursue, doesn’t count). Until we see some results, we must be reassured. No justice, no peace.
Years ago, Trump called the Mueller investigation a “witch hunt.” He’s still using that analogy. And why would any of his more ardent supporters think otherwise? Almost exactly a year ago, I wrote a piece called “Trump and the Mogilevich Defense,” in which I argued that
Trump’s apologists and sycophants can easily sidestep the truth, using the same simple argument mobsters from Al Capone to Semion Mogilevich have made to gaslight the public about their crimes. As the latter told the BBC: “If at least one fact was proved, at least once during last 20 years, I would have been called to the police station.” Or, more simply put: “If any of those allegations were true, why have I never been charged?”. . . .
If at least one fact was proved, at least once during last 20 years, I would have been called to the police station.
Trump and his apologists will keep trotting out the Mogilevich Defense until it no longer applies—that is, until he is called to the police station. The only way to break the defense is to start indicting the wrongdoers. It’s that simple.
A full year later, crickets from the DOJ.
Still, I have patience. And I have faith—in the rule of law, that is being so carefully adhered to, and in Garland himself, as a perfectionist who wants to do the job right. A Trump indictment would be one of the most-read documents ever. It will immediately go into the history books. It must be perfect. I understand all of that. But every day that goes by without an indictment feels like another kick in the nuts from FPOTUS. And I’m not the only one who feels that way:
These are not random dudes on Twitter mansplaining into the wind. Laurence Tribe, a professor emeritus of Harvard Law School, is arguably the nation’s foremost constitutional law scholar. Andrew Weissman is a former U.S. Attorney who headed the Enron Task Force and was a key part of the management team during the Mueller investigation. They are legal heavyweights.
The nature of seditious conspiracy makes Trump’s indictment for January 6th a tough sell to jurors. But his latest crime, where he made off with all those classified and top secret documents? That’s an open-and-shut case. That’s no different, fundamentally, than shipping pallets of gold bars from Fort Knox to Mar-a-Lago. Any other human who did that would already be in jail, so it’s incredibly frustrating to watch Trump live his life (even if that life seems pathetic and not particularly fun, unless you felt envious of Kimberly Guilfoyle on Tiffany’s big day).
But even something that simple takes time, especially when Trump enjoys the protection of a wild card judge like Aileen Cannon—something Garland has no control over. Legal analyst Marcy Wheeler explains how the DOJ is, in fact, moving quickly here, and that any delay is necessary to secure a conviction:
Short of doing a search on another Trump property, preferably in Virginia but possibly in New Jersey or New York, this case cannot be charged until DOJ can present documents the custody of which it has guaranteed to a grand jury. DOJ has to make sure they have the evidence they would use to charge Trump (though adjudicating these disputes now might make any prosecution quicker on the back end).
That said, DOJ may guarantee custody of the documents it seized in August more quickly, via its challenge to Cannon’s decision to appoint a Special Master in the first place, in the 11th Circuit. Trump’s response to that appeal, which he submitted on November 10, seemed desultory, as if Chris Kice knows they will lose this appeal (indeed, that seems likely given that both the 11th Circuit and SCOTUS have already declined to see the case in the way Trump would prefer). DOJ’s response is due on November 17. Because of the way the 11th Circuit has scheduled this appeal, the panel reviewing it will be prepared for oral argument on rather quick turnaround. Even so, DOJ is not likely to guarantee access to these documents via any favorable 11th Circuit decision (which Trump will undoubtedly appeal) before December 1, and it would take about a week to present any case to the grand jury. So the very earliest that DOJ could indict this case would be early- to mid- December.
Today, Donald Trump is expected to announce his candidacy for president. He’ll do this to raise money, which he needs to pay his legal fees. And he’ll do this because he thinks that running for office indemnifies him from indictment. It doesn’t, and Garland has said as much numerous times. But what evidence do we have to the contrary?
Today is also the day after Trump blew off his January 6th Committee subpoena; he was supposed to sit for a closed-door deposition yesterday and failed to show up. Anyone else would be in jail right now, but not FPOTUS. He’ll make his grand announcement tonight, DOJ will say it has to wait until Congress makes a request to act on the contempt citation, and there will once again be zero consequences for Donald Trump’s flagrant, brazen thwarting of the law.
We either have rule of law or we don’t. The AG will either indict Trump and his cronies, or he’ll destroy the credibility of the Justice Department. There is no middle ground. If Wheeler is right, the DOJ will be ready to pounce by the middle of next month. So I’m dreaming of an orange Christmas, with garland on the tree. But I’m pretty sure there’s no such thing as Santa Claus.
Photo credit: Justice tarot. Senate Dems photo of Garland from 2016.