Insurrection
Attorney General Merrick Garland has a dilemma. For many Americans, the events that transpired from election day on November 3rd 2020 through the January 6th 2021 Insurrection at the Capitol, are some of the darkest moments in US History. But for many other Americans, those same events are seen in the exact opposite light. They are convinced that the election was stolen, and they see those who fought to reject the results as heroic.
Not all of the 72 million Americans who voted for Donald Trump believe the election was stolen by Democrats. Recent polling suggests that about thirty percent of all Americans think “Stop the Steal” was real (Politifact). A quick “crunch” shows that around 40 million, more than half of the Trump voters, think the election was stolen.
The Attorney General’s decision to pursue criminal charges should not be impacted by public polling. What Americans believe should be irrelevant to the law, or decisions about enforcement. But Merrick Garland is no “blind justice” statue, balancing the scales of criminality without regard. He is well aware: no matter what he does, indict Trump and his team members or not, a huge proportion of Americans are going to be outraged.
Criminality
Last week, a Federal Judge in California ruled that Trump lawyer John Eastman could not use the “attorney-client confidentiality” privilege to withhold evidence of his interactions with then-President Trump. Judge David O. Carter ruled that the “crime/fraud” exception to confidentiality applied . He found that a preponderance of the evidence demonstrated that Donald Trump committed felony obstruction of Congress and conspired to defraud the United States (NYT).
Congressman Mo Brooks stated that Trump was still attempting to overturn the election as late as September of 2021. Ample evidence of disrupting the election process was also revealed by the January 6th Committee of the House of Representatives. Messages displayed the out-sized role that Senator Ted Cruz played. Even Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, was actively involved in the planning.
The pressure is growing on the Attorney General to act.
Precedence
But there is a lot of momentum against indicting a former President. First, never has the winner of the White House brought charges against the loser. There is a “banana Republic” aspect to that: the winner enters the Presidential Palace and the loser is soon in jail. That happens in the Caribbean and South and Central American countries. It’s not “done” in the United States, no matter the possible transgressions.
And second, there is a tradition of protecting Presidential actions and privileges by the Department. That’s not surprising, the Department of Justice is part of the executive branch, and ultimately answers to the President. The famous “memo” from Watergate days states that a serving President cannot even be indicted. Perhaps the greatest example is when President Gerald Ford granted a blanket pardon to his predecessor, Richard Nixon, for any crimes he may have committed as President. That decision generated a lot of outrage at the time, but in retrospect is seen as “good”, moving the country beyond Watergate.
Recent History
In fact, the most recent episode of “historic immunity” is part of the direct experience of the current Department of Justice leaders. When Barack Obama took office in 2009, there was a lot of discussion about holding the Bush Administration accountable for the illegal rendition and torture of accused terrorists after the attacks on 9-11. The Bush Justice Department itself issued an advisory approving “enhanced interrogation techniques”, torture by any other name, including waterboarding and prolonged nudity and “stress” positions.
President Obama soon shot down attempts to hold the former executive legally responsible, but re-wrote the rules to prohibit further actions. That “precedent” is deeply ingrained in today’s decision makers.
Balance the Scale
On the other hand, there are even more Americans who see a failure to prosecute the Trump leadership as dangerous. In their view, the rules have NOT been rewritten. Nothing has changed to protect the electoral process. In fact, many states have written laws making it even more difficult to vote. They are “fixing” an election security problem that never existed in the first place.
If the illegal actions of 2020 and 2021 remain unpunished, they feel it encourages the same folks to try it again, even “better” in 2024. It’s not about the past, but what is being planned for the future. Donald Trump himself continues to press the “Stop the Steal” story. And belief that the election was stolen has become a litmus test for current Republicans seeking nomination for future office.
When President Biden appointed Federal Appellate Court Judge Merrick Garland to be Attorney General, his primary goal was to “de-politicize” the Department of Justice. The Trump Attorney Generals, Sessions, Whittaker, and Barr; all bowed to the whims of the White House. Barr blatantly pardoned Trump’s friends and prosecuted his enemies. Not since the Nixon-Watergate era, had the President’s thumb been so heavily placed on the scale of justice.
And everything about Trump and “Stop the Steal” is political, exactly where Merrick Garland does not want to go. So it should be no surprise that he seems more than reluctant to enter the fray.
Justice and justice
But justice does need to be served. In the Nixon pardon, it was clear to the vast majority of the nation that Nixon had “done wrong”, and was getting away with it. But the vast majority also wanted to get past the two years of “all Watergate, all the time”. The corruption, and the cure, were clear, whether Richard Nixon himself ever stood before the Bar or not.
The same cannot be said about Trump. The era of “Stop the Steal” didn’t end on election night in November. Nor did it end on the Capitol steps in January. In many ways, “Stop the Steal” is stronger now, with more widespread political support, than it had eighteen months ago. Only Justice, and justice, can balance the scale and protect the American democracy.
