On Merrick Garland and magic wands

Well. It’s been two weeks since the Disaster, and the blame is being thrown hard and fast.

Much of the blame centers around “wokeness”. Identity politics were at fault for the trouncing that Vice President Kamala Harris suffered at Donald Trump’s hands. Except, of course, there was no trouncing. As of this writing, Trump’s share of the vote, which stood at 52% on the night of the election, is now under 50%, and shrinking. If wokeness was the great bugbear, one would expect his margin to have remained steady; it hasn’t.

But another great bogeyman is that milquetoast, norms-obeying cipher, Attorney General Merrick Garland.

If only Garland had had Trump arrested as soon as he assumed the position. If only Garland hadn’t dithered on the investigation. If only Garland had simply acted outside of the law and fought fire with fire. And so on and so forth. The general consensus is: Trump should have been in prison as soon as an attorney general had been put in place, and that he wasn’t is all the proof we need that Garland protected him.

Let’s view the timeline, shall we?

Special Counsel Jack Smith was appointed on November 18, 2022, after Trump officially declared his candidacy for the 2024 election. Garland did this so that an outside counsel would oversee investigations into Trump, and to insulate the Department of Justice and President Joe Biden from accusations that they were targeting a political opponent.

Now, the consensus among the cognoscenti was that up until this point, Garland and the department were doing nothing but twiddling their thumbs. Oh?

When Smith took over the investigations, they had been going on since 2021, when Garland was confirmed as attorney general. Smith did not come into a vacuum and create his inquiry out of whole cloth. The FBI raids on Mar-a-Lago occurred months before Smith took his position. DOJ attorneys had been prosecuting, convicting, and getting cooperating testimony from insurrectionists as to why they went to the Ellipse and then stormed the Capitol. Most said that they were there because Trump asked them to be there. Justice was also investigating the fake electors plot, and the stolen documents case. There was very little that the department wasn’t investigating before the various strands were gathered under Jack Smith.

Now, the argument is that Garland should have moved faster. That he didn’t meet the urgency of the moment. That if indictments had been rendered by the end of 2021 or beginning of 2022, then Trump would have been, as the kids say, cooked.

Well let’s take the classified documents case. The National Archives had been in contact with Trump’s people for months to retrieve the boxes of pilfered documents.

The National Archives had begun the process to retrieve the documents in January 2022. No one knew these documents were missing until the archivists discovered this. When they received the famous fifteen boxes, they discovered that some of them were classified. At that time, they notified the Department of Justice, and an investigation was opened. Before that, there was no investigation, as there was no awareness that a crime may have been committed.

How about the January 6th insurrection? Trump was obviously guilty. Why not just bring him in and throw away the key?

Well, as Marcy Wheeler details here, there was the pesky problem of the pandemic. Everything was backlogged, with investigations and grand jury deliberations delayed. Our justice system is designed to give the accused every opportunity to defend himself. Throw a global plague’s spanner into the works, and that will upend things. If there had been no pandemic, then things would have moved much faster. (Of course, if there had been no pandemic, Trump would have had an even chance of being re-elected in 2020.) But the gears would have ground slowly no matter what, especially with hundreds of prosecutions being conducted.

And, let me return to the justice system. Even defendants without many resources can gum up the works and delay their trials. Donald Trump is not without resources. He delayed proceedings with motion after motion, until he found the one which won: presidential immunity. Yes, it’s a ludicrous argument. But six of the Supreme Court’s nine justices sided with him. If you’re someone who admires strategy, one must admire his. Trump’s was to buy as much time as he could, until something fell into his lap. And with a case like this, prosecutors don’t want to have it overturned on appeal. Therefore, every motion has to be adjudicated, every adverse decision appealed. And thus we are where we are. Which shows that Trump is a criminal at heart, with a criminal’s animal cunning to escape consequences for his actions.

The argument against Garland boils down to this: he should have blown past all the guardrails which protect the defendant for this one exception. Trump’s threat was so great that he didn’t warrant any of the protections that even his foot soldiers were getting. He had to be hauled before a star chamber and dealt with accordingly.

Robert Bolt, in A Man for All Seasons, broke this down succinctly:

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

It may seem that the law is honored more in the breach than the observance, and that men like Trump skirt, defy, and mock the law. But the law is the only thing which holds together civilization. Once the law is gone, what is left? Once you flatten the law to get to the Devil, what will protect you?

“But Trump cares nothing for the law!”

No. He doesn’t. All the more reason why we should. Trump will be gone. We will still be here. What kind of society do we want? One like Trump’s? Or one where we don’t have the rule of the jungle?

The blame is not Merrick Garland’s. It is not Joe Biden’s. Where the blame rests is rather obvious. We saw it on November 5th. We saw it as the votes came in, and the calamity became clear. The fault lies in those who saw what Trump was and is, and were fine with it. Were more that fine; they celebrated him. The fault is in those who cared not for abstract notions of democracy and freedom, and voted for someone with the same sans souçi as if they were upvoting a comment on social media. The fault is not in anyone but ourselves as myopic, selfish human beings. May the consequences we will now face not be too grave.