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Opinion Garland’s caution may have put the Justice Department in a quandary

Attorney General Merrick Garland delivers a statement at the Justice Department on July 6. (Bonnie Cash/AP)
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What the heck is Attorney General Merrick Garland up to?

That’s the question many democracy defenders have been asking in response to some unnerving reports about the Justice Department’s investigation into the Jan. 6, 2021, coup attempt. First was the news, as the New York Times reported, that the Justice Department was “astonished” by the House select committee testimony of Cassidy Hutchinson, who served as a top aide to White House Chief of Staff Mark Meadows. The Times also reported that the Justice Department had only recently intensified its investigation of Donald Trump’s closest associates and that the defeated former president’s name has essentially gone unmentioned in internal discussions about the investigation.

One school of thought counsels patience: Take Garland at his word when he says he is following the facts or has not excluded Trump from the inquiry. These things take time, especially when the department is burdened with hundreds of cases against those directly involved in the violence of Jan. 6.

On the other hand, democracy defenders worry that given Garland’s natural caution and obsession with appearing nonpolitical, he was never going to take the monumental step of indicting a former president absent conclusive proof of Trump’s involvement in planning the violence. Garland likewise may have doubted from the start that Trump’s pressure on state officials, the Justice Department and Vice President Mike Pence fit within the definition of various criminal statutes.

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In other words, the Justice Department may have viewed the violent assault on the Capitol as the totality of the crime and never expected to find conclusive proof of Trump’s involvement. By starting at the bottom of the chain, the Justice Department failed to look for evidence in Trump’s inner circle regarding his connection to the violent phase of the insurrection. That might explain why prosecutors were surprised that Hutchinson’s testimony tied Trump to the violence (e.g., she said Trump knew the people in the mob were armed and had planned to lead them to the Capitol after his speech).

Regardless of whether that explanation of Garland’s outlook is correct, it is clear the Jan. 6 committee has made far more progress linking Trump to possible criminal violations than federal prosecutors have. It went looking for those connections and found them. Meanwhile, the Justice Department’s methodology (akin to investigating a crime organization) seems to have caused investigators to miss what was in front of their noses (White House witnesses who could tie Trump to violence), to waste valuable time and to make it virtually impossible to bring an indictment against Trump or those in his inner circle before the midterms.

The Jan. 6 committee’s remarkable success in fact-finding and presenting evidence against Trump leaves the Justice Department on the defense and scrambling to staff up. The department now faces the prospect that Trump will announce his presidential run in the fall, which the former president will use to cast any subsequent charges as political efforts to keep him from office.

Rolling Stone reports that the legal threat Trump faces is “front-of-mind” for him as he considers a presidential run, according to four of the former president’s associates:

Trump has “spoken about how when you are the president of the United States, it is tough for politically motivated prosecutors to ‘get to you,’” says one of the sources, who has discussed the issue with Trump this summer. “He says when [not if] he is president again, a new Republican administration will put a stop to the [Justice Department] investigation that he views as the Biden administration working to hit him with criminal charges — or even put him and his people in prison.”

Constitutional scholar Laurence H. Tribe, who was once Garland’s law school professor, has a message for the attorney general based on that account: “Mr. Trump is counting on your concerns about not ‘appearing’ political when he makes clear his belief that you wouldn’t dare approve his indictment once he announces.” Tribe added, “You must prove him wrong. Make him a target now. No time to lose.” It’s far from clear Garland will heed that advice.

The Justice Department now finds itself in a quandary. Polls increasingly show the public thinks prosecution of Trump is necessary. The Jan. 6 committee has laid out the facts and the legal theories to do so. A refusal by Garland to indict Trump could be viewed as confirmation that the president is above the law and can engineer a coup with impunity. Such an abdication of responsibility to defend our democracy would amount to the greatest failure in the department’s history. Is that going to be Garland’s legacy?