AG Garland and That Pesky Matter…

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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.

Your thoughts?


13 thoughts on “AG Garland and That Pesky Matter…

  1. Perhaps Trump should be pardoned. That would avoid the trauma of a trial. One might assume that the pardon was necessary because crimes were committed. In 1974, “President Ford said that trying President Nixon would only further inflame political passions and prevent the country from moving forward. He also said that Nixon and his family had suffered enough, that he might not be able to receive a fair trial, and that a trial might prove inconclusive.” Those points might be valid today as well. I know that Nixon was ashamed while Trump is not. We might have to accept that.

    Liked by 1 person

    1. Food for thought, whungerford. Doesn’t feel right to me now, but there’s some logic to it.
      Another thing Teri Kanefield said is that if there’s a trial, the same people who are calling for action now will be repeatedly disappointed by various rulings, etc. Neither side will get all that it wants.

      Liked by 1 person

      1. Unlikely.
        Accepting a Pardon one must accept the criminal act. In demented donnies case that would open him up to, and add ammunition, to even more civil suits and put his minions under threat since diaper don could no longer plead the fifth if subpoena’ed as a witness in a case against maybe Ivanka, or Jr.

        Liked by 1 person

  2. IMO, i would be unpardonable to pardon Trump. It would tell the American people that he is above the law (which he may well turn out to be the case anyway, but why make it official by giving him a pass?). As for inflaming political passions, what does that have to do with right and wrong?

    Liked by 1 person

    1. I’m inclined to agree with you about the pardon, mm.

      As to your other concern, Kanefield’s point was not that decisions should not be made for fear of violence; rather, that folks shouldn’t assume convictions will automatically deter anyone from his/her criminal behavior. That was part of her “no magic bullet” contention.

      Liked by 1 person

  3. I agree with you Annie that unless they have a slam dunk case, they shouldn’t prosecute. I trust those who say it’s very difficult to prove intent. I also trust Barb McQuade when she says Garland is proceeding in a thorough and professional manner. I know Barb personally. Our kids grew up together and she’s as smart and straight-shooting as they come. I’d like to see Trump behind bars but if they can only convict on tax fraud or swindling, so be it. Whatever happens, I believe the man’s ultimate legacy is doomed.

    Liked by 1 person

    1. Hi, Carol—
      I’m quite sure they won’t proceed unless they think they have a slam dunk case. I worry more about a pro-trumpie securing a seat on a jury.

      I do think you’re right about his ultimate legacy; his luster, such as it is, appears to be fading already. We just have to live through it all.

      How nice that you know Barb McQuade. I listen to the Sisters-in-law podcasts weekly and am impressed with all of them—and they all seem so likable. She has a self-deprecating humor I find delightful.

      On a separate note, have you been getting my comments on your blog? They fly off the screen and I don’t see them appear, but in the past, you’ve said you’d received them. (I haven’t read Diderot yet but will get to it shortly.)

      Liked by 1 person

      1. If you want history to view the verdict as having come from a fair trial, I think you have to have one or two Trumpeters on the jury. But maybe that’s ok. There are many examples of staunch bigots who, once sequestered and forced to study reality, have completely changed their tune.

        I’ve not found time to listen to the Sisters In Law. Glad to hear you enjoy it. Barb, her husband, and 4 kids have always struck me as a close-knit clan of extraordinary cool cats. A wonderful family in our community.

        Yes, I have been receiving your comments. Thanks Annie. Perhaps you haven’t been receiving my replies.

        Liked by 1 person

      2. Hi, Carol–
        I realized that I didn’t respond to your suggestion that I may not have been receiving your replies. I don’t request that comments be sent to me because I struggle with overloaded emails. I do, however, check back when you’ve liked a comment, knowing that you’ve then read it. And if I’ve been particularly taken by one of your posts, I go back to it. I just did so with your fine Diderot post. I see that my comment was safely delivered.

        Liked by 1 person

  4. Carol,
    My comment about the Trumpies was meant to refer to people who will lie about whether they had already made up their minds. I think that’s the problem in getting unbiased jurors per se. I wouldn’t want any jurors whose minds were made up serving on this jury—or any other.


  5. Lays it out so clearly. Hard to convey to those not inclined to absorb the legal reasoning. So many just want to see justice done and not hung up on the very real practicalities that could derail that outcome. Frustrating. And for sure, he will use whatever “grace” he gets to his advantage, which just sours many of us all the more on the idea that under the rule of law, wrongdoers should be brought to account.

    Liked by 1 person

    1. Thanks, Denise. What a conundrum has been foisted upon us by this dreadful, shameless man. I think it would be terrible if he faced no consequences for any of his misdeeds. But even more importantly, he must never have power again.


  6. Hi, anyname…

    I find it hard to conjecture what tfg would do if offered a pardon, which I hope will not happen. If he faced prison time, I don’t think anyone else’s fate—not even Ivanka’s—would take precedence over his own. He would not do well behind bars.


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