This post was originally a rather formal “Open Letter to Attorney General Merrick Garland.” I began by praising him for the extraordinary courage and skill he showed in prosecuting the horrific 1995 Oklahoma City bombing and said I’d heard a number of his former colleagues attest to his intellect, integrity, and dedication.
I haven’t been one who attacked him early on for his alleged failure or hair-pulling slowness in investigating the former President.
I believed him when he stated unequivocally on January 5, 2022:
“The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under the law, whether they were present that day or were otherwise criminally responsible for the assault on our democracy.“
Garland reiterated that sentiment in his March 10th press conference, stating that his department’s investigations won’t end until everyone is held accountable in what he called “the most urgent investigation in the history of the Justice Department.”
I knew we didn’t want Garland to state outright that his department was investigating Trump; such a premature comment, as James Comey showed us all too well, can really mess things up.
Nevertheless, the evidence seems to be mounting. In January the Justice Department announced a wide investigation into the apparently “false electors” scheme in seven states. And the “seditious conspiracy” charge against the Oath Keepers is a big deal that is bearing fruit–and has wider implications.
In recent weeks, there have been at least two important court actions.
*Judge Amit Mehta of the Washington, DC District Court ruled that three lawsuits filed by eleven members of Congress and two Capitol Police officers could proceed, denying Trump immunity from prosecution. The suits had charged that the former President bore responsibility for the January 6 Insurrection at the Capitol, and had prevented the plaintiffs from performing their duties.
In his 112-page opinion, Judge Mehta was specific on an issue that weighs heavily on a prosecutor’s decision to bring charges: can the defendant’s intent to commit these crimes be proven?
“State of mind. As to this factor, the court has found that Plaintiffs have plausibly alleged that the President was of one mind with organized groups and others to participate in violent and unlawful acts to impede the Certification. Thus, this factor is supported by more than, as the President contends, his alleged pleasure in watching news coverage of the events as they unfolded at the Capitol building.”
*Lawyers for the January 6th Committee stated in a recent California civil court filing that they’d found enough evidence that Trump, conservative lawyer John Eastman and others could be charged with obstruction of an official Congressional proceeding and conspiracy to defraud the American people. (Eastman’s memorandum formed the basis for the Big Lie that Trump really won the election and that Pence was obliged to upend the Electoral College certification of Biden’s win.)
Legal scholars—including Constitutional experts Lawrence Tribe (Garland’s former professor at Harvard Law) and Representative Jamie Raskin, a member of the House Select Committee—have emphatically stressed their belief that if the Department of Justice (DOJ) does not hold Donald Trump accountable, it will be giving carte blanche to him and/or others to do whatever they please.
So though I don’t see Garland as a coward or any of the more over-the-top characterizations that fly in Twitterland, I did feel the need to suggest that maybe there was some way for him to give us a sign.
Now I’m not so sure.
I still hope the DOJ is investigating the former President, and I think it’s reasonable to believe they are.
Former Prosecutor Barbara McQuade prepared a “Model Prosecution Memo.” She used only publicly available information to marshal “very strong evidence” for the Justice Department to use in bringing federal criminal charges against the former President based on his attempts to get then-VP Pence to overturn the election.
McQuade has praised Garland profusely and said she believes an investigation is ongoing. Interviewed about her Memo, she said:
“I just can’t imagine a world in which the Justice Department is not at least conducting an investigation that could lead to a memo like this.”
But whether they’ll ever indict and convict him seems questionable. And maybe that’s not a bad thing.
If you have the time, I hope you’ll listen to this video by Teri Kanefield, an attorney and author known for her solid and very rational and persuasive views.
Kanefield isn’t saying that Garland shouldn’t bring Trump to trial, but she wants people to understand that doing so isn’t the “magic bullet” that many seem to believe it would be.
Federal prosecutors have a 96% conviction rate, she notes, because they bring cases only when they have the evidence to convict. (This video appeared in November, and more evidence has been amassed since then. Whether it’s enough is one key question.)
Even if the evidence is rock solid, “juries can be unpredictable. The outcome of a trial is never certain.”
The DOJ would have to believe their case was so airtight that it could withstand appeals all the way to the Supreme Court. The only thing that would be worse than failing to hold former President Trump accountable would be to attempt to do so in a trial that ends in an acquittal or a guilty plea that’s overturned. (These are my thoughts–not Kanefield’s.)
Kanefield understands that people want consequences. Most persuasive to me, she points out that
“Consequences don’t do what people think they will do. The real problem is that [Trump] is shielded by a political party and supported by a significant portion of the population. You can’t punish people into changing their political views.”
She adds that jail sentences don’t seem to be deterring other extremists. “When do we get to use our guns?” asked a Trump follower recently.
Michael Stern, a former federal prosecutor, just wrote an article stating why he believes Garland and his department will not bring charges against the former President: because there is such a strong likelihood of a hung jury if even one juror supports Trump; because the former guy won’t plead guilty–he’ll use the platform to foment the Big Lie, play the victim, and raise money; and because these actions will encourage other charged Insurrectionists to do the same, thereby tying up the Justice Department indefinitely.
Kanefield’s premise about the lack of a magic bullet is that we shouldn’t look for Garland, or the January 6th Committee, or any other individual or entity to help us shore up our democracy. On her website, she has a list of Things to Do to protect our democracy. “Nobody owes you a democracy,” she writes. “You want it? You have to work for it.”
At this point, I remain hopeful that the January 6th Committee’s public hearings will awaken American citizens to the grievous harm that’s been done to our democracy by the former President and his followers.
Lawrence Tribe and Dennis Aftergut, a former federal prosecutor now with Lawyers Defending American Democracy, have called on Garland in a Washington Post essay to name a special counsel to investigate all things Trump-related.
Such a move, they state, would show that “justice is non-partisan, and fears of political fallout will not determine the decision on whether to bring charges.”
Interesting idea. This individual would be a person of high integrity and experience, currently outside the government.
I’ve been persuaded that whether or not the top perpetrators are convicted, what’s most important is that the majority of Americans believe the legal process has been fair and deliberate and apolitical.
This is especially true because of Trump et al’s rampant lawlessness. If we really believe that we’re a nation of laws, we may not see our perception of justice meted out before the November elections.
And that could be a sign of our democracy’s strength, rather than its weakness.