The Department of Justice announced this week that it would crack down on airline passengers who throw tantrums. Now, if Attorney General Merrick Garland would only get around to doing something about people who plot the overthrow of our government and a former president who’s serially obstructed justice and abused power we might be getting someplace.
Not that in-flight safety isn’t important. It is. Just like it’s important to arrest and prosecute the moron Trumpist foot soldiers who stormed the Capitol on Jan. 6. All that is important. But it is not enough.
President Joe Biden may get everything else right but if his administration—starting with the Department of Justice—gets wrong its response to the threats to our democracy posed by Trump and the GOP, nothing else they do may matter.
A widely respected jurist, Garland was picked by Biden to depoliticize the DoJ and end the abuses of its power we saw under Trump appointees Jeff Sessions and Bill Barr. Certainly, he has made some strides in that direction. But if the result of his de-politicization is tiptoeing around the egregious serial wrongdoing of the leaders of the Republican Party, then his efforts will have exactly the opposite of the intended effect. By failing to hold Trump and Co. accountable, Garland will set the stage for them to continue unabated their efforts to turn the U.S. into a one-party state in which only Republicans can win elections and any tactics they may use to hold on to power will have been effectively validated by the inaction of Garland and his DOJ.
Garland has, on more than one occasion, already taken steps that have actually empowered or emboldened those who currently pose a threat to our system. A particularly egregious example of this was Garland’s decision to take the side of Trump by arguing that the former president was acting in his official capacity when he lied and defamed journalist E. Jean Carroll following her accusation that Trump had raped her long before he was elected president.
Garland’s position was defended by allies who argued that he was an “institutionalist” who felt it was his duty to defend presidential prerogatives.But what he was actually doing was defending the abuse of power and, however inadvertently, demonstrating that our institutions may face no threat quite so grave as that posed by self-anointed “institutionalists.”
Recently, Garland has won praise for having had the Justice Department enforce contempt of Congress charges against disheveled Trump crony Stephen Bannon. However, the DOJ decision to bring charges against Bannon took weeks when it should have taken minutes. The case was clear-cut. Bannon ignored a legitimate Congressional subpoena, claiming rights he did not have.
I have been counseled by wise and respected friends, like former U.S. Attorney and Deputy Assistant Attorney General Harry Litman, that we should be grateful for the Bannon decision because it will empower the Congress to do its job. I understand the view. But this Congressional investigation has a clock running on it. If the GOP retakes the House next November, as many are currently predicting, the investigation into the Jan. 6 coup attempt will be instantly ended by the Republicans. So for all those called by the committee, it may appear that all they have to do to avoid suffering any consequences for their action is to stall just as Bannon is doing. In this case, justice delayed will most certainly be justice denied.
More troubling to me though is that the only reason we are hearing of any case being brought against Bannon as a senior coup plotter (or upper middle management in any case) is because Congress is investigating the events of Jan. 6. We have not heard a peep out of the Department of Justice about prosecuting those responsible for inciting, planning or funding the effort to undo the lawful transfer of presidential power to the man the American people elected, Joe Biden.
We also have not heard a peep out of them in terms of prosecuting the dozen instances of clear obstruction of justice that Special Counsel Robert Mueller’s report cited against Trump. We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.
Other wise and experienced legal observers for whom I have massive respect argue that further patience is in order, that we don’t know what Garland is doing behind the scenes and we should give him more time. One such person is former U.S. attorney Barbara McQuade. She said to me, “While I understand the frustration that DOJ has not yet charged higher-level defendants in the Jan. 6 attack, I think that it is not yet time to be angry with AG Garland for inaction. We don’t know what investigative steps may be occurring because of the grand jury secrecy requirement. Robert Mueller spent almost two years on his investigation. I would expect this investigation to take at least that long.”
A.G. Gill, another analyst of these matters for whom I have great respect, creator and host of the Daily Beans and Mueller She Wrote podcasts, argues caution for another reason. She feels there are efforts afoot to turn public opinion against Garland and DOJ as a way of weakening and discrediting these institutions.
And yet Garland’s behavior to date has left me apprehensive. Conversations I have had with folks inside DOJ have not eased those concerns. There, frustration with Garland begins with his management style (which insiders liken to that of a judge running his chambers in which his office is a kind of bubble apart from the department and staffed by a small team akin to the clerks he had when he was in the judiciary).
It extends to concerns that he will err too far in the name of caution and a desire not to be perceived as political. This too is a hold-over from his court days and ignores that A) he is a political appointee, B) the issues he is dealing with are hyper-politicized and c) there is no way to prosecute politicians for crimes committed in the name of partisanship without appearing political.
But, still, I’ll admit it. I hear our judicial clock ticking as loudly as Mona Lisa Vito’s biological clock. Given that the stakes are so high and seeing some of the decisions Garland has made, I am wondering when it is ok to become alarmed, when it is ok to become angry.
I asked Slate senior editor and host of the “Amicus” podcast, Dahlia Lithwick whether my burgeoning anger was acceptable, and she responded: “I was already pretty ok about getting mad at this last summer. It’s possible to admire and honor all the good and vitally necessary initiatives undertaken by Garland’s DOJ, to rejoice in his principled efforts to reinstate the wall between the Justice Department and the White House that Bill Barr and Donald Trump had reduced to a picket fence, and still to be maddened by the DOJ’s evident hope that a reckoning over Trump’s lawlessness can be left to prosecutors in New York and the Congress.
She continued, making an important historical point: “When the Obama Administration opted to draw a line under the Bush era torture and rendition programs, it didn’t disappear the past, it just buried it. And given that Trump’s election denialism is emphatically not in the past — according to a November poll from the Public Religion Research Institute, 68 % of Republicans believe the 2020 election was ‘stolen’ from Donald Trump. That growing number doesn’t just foment doubt in election integrity and the rule of law, it’s being used to pass election suppression and democracy subversion measures in states around the country. The ‘big lie’ that seeded Jan. 6 has become the litmus test for GOP loyalty. I understand that the optics of prosecuting one’s political enemies and criminalizing fiery speech and politics is a chilling callback to the McCarthy era. But the lies and violence and white supremacy and misogyny of Jan. 6 isn’t buried in the past, it’s metastasizing and spreading in ways that threaten the future as well.”
Revered legal scholar, Lawrence Tribe, who taught Garland when the attorney general was a student at Harvard Law School, suggests we give his former student a little more time, but not an unlimited amount. He hears the clock ticking too. Tribe said to me, “If Merrick Garland hadn’t authorized the Bannon indictment when he did, I’d certainly have gotten mad long since. At least with respect to someone like me, he bought a few weeks with that indictment—but not a few months.”
“All things considered,” he continued, “I’ll be both disappointed and angry if we find ourselves going into January 2022 without strong evidence — in a town that leaks like a sieve — that DOJ is moving full speed ahead on holding Trump and his enablers, facilitators, funders and co-conspirators criminally accountable for the coup d’etat they tried to pull off and the violent insurrection they mounted against the Capitol to delay, obstruct and, if possible, subvert the solemn electoral proceeding there underway.”
That too, makes sense to me. What is certain is this: Time is running out. There is every reason to fear that Trump and the coup plotters will not be held accountable in any meaningful way. If they are not, they will see the inaction of our justice system as a license to continue their attacks on our system of government. What is more, absent an effective Department of Justice effort, those attacks are that much more likely to succeed and to be compounded by even greater abuses. And at that point, all the institutionalists in the world will not be able to put our Humpty Dumpty of a democracy back together again.