On Monday night, The Rachel Maddow Show got hold of a memo written by Attorney General Merrick Garland that appears to throw cold water on the idea that Trump or his closest cronies will face any accountability before the midterm elections.
The memo, dated May 25, reads like the same institutionalist claptrap we’ve consistently seen from this Department of Justice. Titled “Election Year Sensitivities,” the memo warns staff against making statements, taking actions, or charging anybody in a way that might “advantage or disadvantage any candidate or political party.” It also warns against the mere appearance of such bias. The memo extends this prosecutorial grace not only to sitting elected officials but also to anybody who is a candidate for office.
Now, on the one hand, any federal law enforcement official this side of James “I found unimportant e-mails 11 days before the election and decided to be a legend” Comey understands that they’re not supposed to let politics get ahead of the law. So it’s possible to spin the memo as standard DOJ stuff. But the fact that Garland decided to remind his department about “election sensitivities” at a time when the country is demanding that the Trump regime be held accountable for its suspected role in trying to overthrow the government really does make it look like Garland is intentionally trying to chill further investigation into the former administration.
Moreover, Garland’s memo isn’t just boilerplate banality. It also cites another memo, from February 2020, by former Attorney General William Barr. That memo said that any criminal or counterintelligence investigations opened against “politically sensitive” people need to be approved by the AG personally—meaning, essentially, that the nonpartisan prosecutors and investigators at the DOJ have to clear their work and even their questions with the political appointee at the top of the department. The whole point of that Barr memo was to discourage the non-Trumpy civil servants at the DOJ from doing anything that could have negatively affected Trump or his merry band in the run-up to the 2020 election.
The memo is another data point for the case that Garland is not willing or able to meet the moment of crisis he was appointed to handle. Consider:
- The admonition to avoid the “appearance” of political bias is pointless in an environment where literally any action the DOJ takes against criminals who happen to be Republican will be spun as “politically motivated” by Fox News and the rest of white-wing media. Garland might as well tell DOJ employees to go home for the duration of his tenure if he is going to be governed by what Republicans say helps or harms their party. There is no apolitical action the DOJ can take against Republicans suspected of crime. That is just the result of having one political party that has embraced crime as part of its brand.
- If Garland were really worried about the appearance of political favoritism, he should have cited somebody other than the most politically compromised attorney general in modern American history. Bill Barr is the poster child for letting politics govern prosecutorial decisions. Citing him positively not only legitimizes Barr’s corrupt approach to the office; it also chills investigations of Republicans suspected of crime, just like Barr himself did.
- Garland’s memo is dated May 25. The January 6 Select Committee started its public hearings on the plot to overturn the election on June 9. Far from looking apolitical, the timing of Garland’s memo looks like a politically motivated attempt to inoculate himself and his department from the deluge of evidence the committee was set to unleash. Garland’s memo can be read as saying: Dear employees, Congress is about to show the American people that Trump and his staff are guilty of an attempted coup d’état. Please ignore this new evidence and the accompanying public outcry for accountability. Remember, we are close to an election. The timing of Garland’s memo is political, even if some claim that the substance is not.
- Former president Donald Trump would seem to be aware of all of this. He is reportedly considering announcing his reelection bid before the midterm elections, specifically because he believes it will protect him from further investigation and prosecution. Garland’s memo gives credibility to that belief. His stated reluctance to prosecute candidates for election could be the very thing that accelerates Trump’s decision to declare himself a candidate for election. And if Garland charges Trump anyway after he declares, Trump will use Garland’s own memo against him to say that Garland was so politically motivated that he ignored his own guidance.
In short: Garland wrote a memo that not only gives comfort to the enemies of American democracy by suggesting that they’re too important to be prosecuted for their crimes, but also gives ammunition to those enemies should Garland ever decide to do his job.
This has been the problem with Garland from the very start. He is so worried about appearing politically motivated that he is doing things (or not doing things) based purely on political motivations. There is no legal reason to announce to suspected criminals that your office will take into consideration the “advantages and disadvantages” of charging decisions on political parties; there is only a political reason to show your hand in that way. There is no legal reason to not charge a person after they’ve announced their candidacy for an office two years before the election for that office; there’s only a political reason to manage public expectations.
Garland is like a referee who is so concerned about the appearance of bias toward one team or the other that he swallows his whistle and refuses to call a foul or a penalty. He thinks he’s being impartial, but he’s actually just helping the team that doesn’t play by the rules.