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Opinion Don’t give up on Merrick Garland quite yet

Attorney General Merrick Garland speaks during a news conference at the Justice Department on May 5. (Ting Shen/Bloomberg News)
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Critics have pilloried Merrick Garland for what they perceive as slowness or even disinclination in prosecuting defeated former president Donald Trump and his cronies for the attempted coup culminating in the Jan. 6 insurrection. The attorney general has been so methodical about prosecuting low-level figures involved in the attack and so tight-lipped about the broader attempt to overturn the election that many despair Trump will never be held accountable.

But recent — if small — revelations indicate that Garland does intend to take this all the way to the highest levels of the Trump administration. The Justice Department’s request for documents from the Jan. 6 House select committee was one positive sign. And the department’s decision not to prosecute former White House chief of staff Mark Meadows and deputy chief of staff Dan Scavino for contempt of Congress could mean the two are targets of a broader investigation.

Then, on Monday, the Justice Department announced: “A federal grand jury in the District of Columbia returned a superseding indictment today charging five members of the Proud Boys, including the group’s former national chairman, with seditious conspiracy and other charges for their actions before and during the breach of the U.S. Capitol on Jan. 6, 2021. Their actions disrupted a joint session of the U.S. Congress convened to ascertain and count the electoral votes related to the presidential election.”

Seditious conspiracy is, of course, a serious charge indicating the plan to attack the Capitol amounted to an attempt to overthrow the government. The department explained in a news release that Proud Boys chief Henry “Enrique” Tarrio and his fellow defendants “conspired to prevent, hinder and delay the certification of the electoral college vote, and to oppose by force the authority of the government of the United States.” (Lawyers for the men claim there is no evidence that they planned in advance to storm the Capitol.) Interestingly, this case and others are being prosecuted by the book out of the U.S. attorney’s office, not main Justice.

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This follows a plea deal reached in April with Charles Donohoe, head of the Proud Boys’s North Carolina chapter. In exchange for a guilty plea to two counts, he agreed to assist prosecutors. The superseding indictment appears to be the product of that plea deal.

Former federal prosecutor Barbara McQuade tells me the new seditious conspiracy charge suggests “the men named in the second superseding indictment did not agree to cooperate.” Put differently, with a stiffer charge, they might agree to lend a hand to the Justice Department.

Noah Bookbinder, head of Citizens for Responsibility and Ethics in Washington (which has brought numerous suits and claims against Trump), tells me that Monday’s charges “are very significant and definitely a step in the right direction. They show a growing recognition by prosecutors that this was not a case of isolated or spontaneous violence, but rather an organized and deliberate effort to use violence to try to overturn the results of a free and fair election.”

That’s bad news for Trump. In a recently released Brookings Institution guide to the Jan. 6 hearings, the writers assert that public evidence suggests “Trump was personally involved in entertaining, exploring, and even attempting to enact an astonishing array of legally unjustifiable schemes to retain power. His pursuit of power by any means necessary — including endorsing and acceding to violence — is probative of criminal intent.”

One of the guide’s authors, Norman Eisen, who served as co-counsel to the House Judiciary Committee during Trump’s first impeachment, tells me that “the application of the law to Trump would be complex, as we note in a new report outlining all the principal possible federal and state charges against the former president. But with this development, the possibility must be borne in mind.”

Other legal scholars such as Harvard University’s Laurence H. Tribe are likewise encouraged. He sees Monday’s developments as “a sign of this attorney general’s aggressiveness and dedication” that advances the theory that Trump was “at the center of the far-flung multifaceted conspiracy to overturn the very heart of American government, its peaceful transition of power pursuant to our quadrennial national election.”

Garland, if taken at his word, will follow the facts. He will also need to determine whether provable facts can be successfully prosecuted beyond a reasonable doubt along these and other legal theories.

“It is good news,” former federal prosecutor Joyce White Vance tells me regarding the latest indictment. “It shows that [the] DOJ is eliciting useful information from witnesses and especially cooperating defendants that they are using to make additional cases.” She adds, “The question is whether they will be able to move above this level to people in and around the White House and show a conspiracy or at least communication between them. The Jan. 6 Committee certainly seems to think it’s there.”

Thankfully, Garland seems to believe there is a possibility he can gather facts necessary to prosecute.

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