On Monday morning, The Washington Post published a devastating story about attempts by leadership at the Department of Justice—including, most notably, Attorney General Merrick Garland, Deputy Attorney General Lisa Monaco, and FBI Director Chris Wray—to avoid prosecuting Donald Trump. The story exposes how the DOJ quashed efforts to aggressively pursue Trump and other politically connected Republicans for their roles in attacking the Capitol on January 6, 2021, and instead adopted a more “cautious” approach aimed at avoiding the appearance of partisanship. Garland, it would seem, cared more about appearing fair (to Republicans) than seeking justice against the Republicans who tried to overthrow the government.
The story is, of course, not surprising to me. I’ve been saying that Garland was the wrong guy for the job pretty much since January 7. I have noted that his desperate attempts to appear “nonpartisan” by refusing to go after a Republican who committed crimes was the real measure of his craven partisanship. But Garland has his defenders. Many of them are institutionalists who are going to defend pretty much anybody who wears a suit, is vested with authority, and doesn’t upset traditional norms. Many others are Joe Biden defenders who believe any criticism of Garland is an attack on Biden. For my part, I think that Biden was wrong to appoint Garland as attorney general, and I think President Barack Obama was wrong to nominate Garland for the Supreme Court, and yet I’d happily vote for either president again. Even good executives can make bad personnel decisions. My problem is with Garland and his signature move of convincing Democratic presidents that his ability to be inoffensive to Republicans is a virtue instead of a moral failure.
You’d think that the Post story would quiet the Garland defenders for at least a week, but no no no, his fans are out with the pom-poms to defend their guy. They’ve latched onto a defense I’m sure Garland himself will make once he writes a book about all the things he didn’t do: Garland wasn’t avoiding prosecuting the former president; he was just methodically building a case against Trump from the bottom up. The Post itself offered a preview of this defense when it described Garland, Monaco, and Wray as adopting a “ladder” approach by which they started with the January 6 rioters and worked their way up to Trump.
There are two problems with this narrative: Garland wasn’t really using a ladder approach to work his way up to Trump, and even if he was, a ladder approach was unjust and inappropriate for this case.
My rejection of the ladder approach to criminal investigation will surprise some people, because it’s the method often championed by prosecutors and law enforcement in organized crime cases, and it’s the one most frequently popularized in our entertainment and popular culture. Everybody can kind of visualize a cork board with a bunch of low-level crooks pinned to the periphery with strings and notes leading to John Gotti’s face at the center. One can imagine prosecutors diligently charging and flipping the boss’s sloppy or violent associates as they move ever closer to nailing their true target.
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The “Harvard Law Review” Refused to Run This Piece About Genocide in Gaza
The “Harvard Law Review” Refused to Run This Piece About Genocide in Gaza
At least, that’s how it works in the movies. In real life, this “approach” is really an excuse for prosecutors to use the vast resources of the federal government to bully minor lawbreakers, who can’t begin to defend themselves, until they break under the sheer weight of charges arrayed against them and cop a plea. It involves the government threatening drug users and thieves with over-punishment unless they are lucky enough to know something about somebody the government is actually interested in. It involves prosecutors over-charging the defendant in front of them, and justifying it with their zeal to capture somebody else. And sometimes, it involves the government letting truly bad people get away with horrible things in the hope that the dangerous criminal they let off easy today can help them catch a more high-profile criminal tomorrow.
“Flipping” people on the very low end or periphery of a larger criminal enterprise by using the carrot of a sweet plea deal in concert with the stick of over-incarceration is not justice. It’s harassment. More people would see it that way if this country weren’t so in love with prosecutors, and the media spent less time celebrating the narratives prosecutors spin for it.
Often, the attempts to build a case this way don’t even work: The small-time criminal doesn’t actually know anything useful; the promised charges against the boss or kingpin never come to pass or, if they do, it’s because the target got caught committing some other crime (see Al Capone for tax evasion, or Donald Trump for espionage). Often, putting the screws to all of the people on the bottom rung of the ladder leads nowhere.
To be clear, I’m not against collective responsibility for criminal enterprises: I think the Racketeer Influenced and Corrupt Organizations Act (RICO), which allows the government to charge people who participate in a criminal enterprise with all the crimes committed in furtherance of that enterprise, is a good law. And there are times when unraveling a highly organized criminal venture requires slowly pulling at threads until something breaks. But “highly organized” is not how I’d describe any of Trump’s crimes, or his coup attempt. This was less “Oh no, the kingpin is using burner phones to evade our wiretaps,” and more “Did that guy just call for an attack on the government on live television?” I just think that bringing the full weight of the Department of Justice down on the heads of relatively powerless rioters in hopes of maybe somehow possibly collecting evidence against the man who tried to prod them to rebellion is an unjust and, frankly, cowardly method of prosecution.
Garland followed the first part of the prosecutorial script: He duly rounded up many of the January 6 rioters—rioters that Chris Wray let walk away on January 6 when they all should have been arrested on the spot—and charged them with crimes. People on the lowest rungs felt the full measure of federal prosecution—and, it is worth noting, these people do, so far, seem less inclined to commit additional violence in the service of Trump.
Rounding up rioters, however, was the easy part. Garland may want the world to believe that there was always some grand plan to move from the rioters to the man who set them on their violent path, but, as one DOJ official grumbled to the Post, “at some point, there was no ladder from here to there.” The so-called “cautious” or “methodical” approach to prosecuting Trump effectively involved bringing the hammer down on guys wearing animal skins, without bringing that same prosecutorial zeal to Trump, his staff, his cronies, his children, or other politically connected Republicans.
In fact, the idea that January 6 rioters were going to have anything useful to give the DOJ about Trump was always a fantasy. Those MAGA people took their cues from Trump’s public statements. He wasn’t in “secret” communication with his forces. He doesn’t even like his forces: He thinks they’re useful idiots who exist solely for the benefit of his own ego. The rioters weren’t the bottom rung of a vast criminal enterprise; they were the violence the vast criminal enterprise was using as a threat.
Moreover, any good prosecutor would have known that a ladder investigation takes a lot of time, vastly more than Garland had. When prosecutors do successfully use the method of flipping people all the way to the top, it can take years. But Garland didn’t have years to go from Capitol rioter to former president. He had, at a maximum, two years to investigate, charge, and convict Trump for a crime that would have triggered the 14th Amendment’s prohibition on traitors running for office again. That was always the true event horizon: convict Trump before he could run again. By starting with the rioters, Garland all but doomed us to have to fight Trump through another election.
Garland’s failure at the Justice Department is all the more obvious because there was, in fact, one institution that did conduct a thorough and speedy ladder investigation while he was simply claiming to do that: The House Select Committee to Investigate January 6. It was the select committee, not Garland, that started its investigation by interviewing the people in Trump’s orbit as a way to build toward Trump. They were not wasting time on rioters, and they didn’t let the fear of appearing “political” distract them from the truth. They were talking to people like Trump campaign manager Bill Stepian, Trump lawyers Pat Cippolone and Bill Barr, Trump advisers like Boris Epshteyn and Peter Navarro, and, of course, White House special assistant Cassidy Hutchinson.
This was the true bottom-up investigation, and it had nothing to do with Garland. It should also be noted that many of the people who talked to Congress did so voluntarily, or at the behest of a normal investigative subpoena. Most of them did not need to be charged with a crime and flipped to offer testimony.
The January 6 Committee proves that nobody needed to start with rioters or threaten them with incarceration to conduct a full investigation into Donald Trump’s role in the coup attempt. Punishing the rioters for their crimes was not a necessary first step before punishing Trump for his. All that was needed was public servants dedicated to bringing Trump to justice as opposed to protecting their own backsides from accusations of playing politics. Hell, Liz Cheney would have run the Justice Department with more integrity and fearlessness than Merrick Garland has: She’d have been great at it, at least until she decided to torture Mark Meadows for his cell phone password. She would have investigated Trump instead of banning prosecutors from “using the T word.”
Once the January 6 Committee did the work that Garland refused to do, he was forced to act. And by “act,” I of course mean he decided to appoint Jack Smith to handle the Trump espionage case (after Garland spent months asking super nicely for Trump to give back the boxes he stole), and eventually made the January 6 investigation Smith’s responsibility as well. Garland appears to be obsessed with avoiding the perception that he was committing the partisan sin of doing his goddamn job.
Going forward, a lot of people will want to give Garland credit for the work Jack Smith does. And still more people will forgive all of Garland’s attempts to avoid prosecuting Trump if Trump ends up in jail anyway.
I will not be one of those people. Garland, Monaco, and Wray all decided from the outset to focus on the deplorable people who attacked the Capitol instead of the man who sent them there. Those people committed crimes, but focusing on them was never the smart or methodical way to build a case against Trump. It was cowardly, and it was a choice that put political optics ahead of justice and accountability.
I hope the next Democratic administration appoints Merrick Garland to dog-catcher—because I like dogs, and I like to see them run free.