The US Department of Justice is not an independent agency, like the Securities and Exchange Commission or the Federal Trade Commission. Its head, the attorney general, is not just the country’s lawyer in chief. He is a member of the Cabinet, which was created to advise the president on all manner of things, including national security, the president’s chief responsibility. The Justice Department itself has a National Security Division. Another of its divisions is the Federal Bureau of Investigation.
Obviously, Attorney General Merrick Garland has always known all this. Nonetheless, in the face of an organized and multifaceted threat to national security—involving President Donald Trump’s misappropriation of state secrets, attempts to subvert fair elections, and ultimately the weakening of this country’s international standing—Garland’s actions, or, rather, his lengthy pattern of inaction, suggests a deference to other facts and considerations. Garland continued to procrastinate—ostensibly in search of an exorbitant level of proof that might finally convince Donald Trump’s followers that their hero is a criminal.
With the naming of a special counsel, Garland confirmed this pattern of inaction to be actually one of avoidance. Under some tortured version of fair play, at a very late stage he abandoned responsibility for guiding the most important set of cases of his tenure. By invoking a law intended for investigations of an AG’s own administration—not of a former administration of the rival political party—he did not actually escape his legal obligation to make the ultimate call whether to indict. But he did manage to toss the hot potato into another pair of hands for another several months.
The decision, supposedly to remove any taint of political bias, was reached after Trump announced for the presidency on November 15. From denunciations of the special counsel by Trump and incoming House Judiciary Chairman Jim Jordan we can conclude it has done no such thing. But Garland’s stated rationale is also disingenuous. By publicly floating the possibility of appointing a special counsel, Garland legitimized the idea that the DOJ’s current investigation might be tainted, and gave Trump an extra incentive to announce for president, thereby supplying Garland with a pretext to step out of the line of fire. Having maintained since election night 2020 that he had been robbed of the presidency, it was entirely foreseeable that Trump would run again. One could say that, unlike every other former president, he never stopped running. However, since his announcement came two years before the next presidential election, it seems plain that it was the hint from the DOJ and not campaign strategy that dictated its timing.
The appointee, Jack Smith, will need time to review the voluminous evidence already gathered. Because even allowing for the difficulty of proving a sedition conspiracy, the explanation for the lack of white-collar indictments cannot be the insufficiency of evidence collected so far. Take Trump’s by now widely heard demand, in early January 2021, before the change of administrations, that Brad Raffensberger, Georgia’s secretary of state, “find” the requisite number of votes to choose Republican electors instead. Trump’s demand is infamous because it is on tape, thanks to Raffensberger’s foresight.
When prosecutors go after members of organized crime, they sometimes succeed in inducing a foot soldier to wear a wire in meetings with the boss. In those dozens of hours of conversation, much of it sometimes inaudible or spoken in argot or code, a couple of minutes of arguably incriminating language are deemed sufficient evidence to prosecute. And on the basis of such mumblings, the government in the past has obtained convictions of the capos of organized crime.
On the Georgia tape, the sound is clear as a bell, Trump’s language is plain, and his intent—to fraudulently reverse the election result—which he substantiates with threats, is unambiguous. Yet Garland not only never brought an indictment; there is no indication that he even initiated an investigation into that aspect of the Georgia scheme.
The Georgia vote tampering is not the only easy layup available to Justice. Consider the matter of Trump’s illegal and dangerous removal of thousands of pages of government documents he was legally obligated to relinquish to the National Archives upon leaving office. The Archives realized in the first part of 2021 that documents were missing. It retrieved the first tranche of boxes in January 2022. Within them it counted 184 classified documents. In the belief that the haul was not complete, the Archives made a formal criminal referral to Justice the following month. The Archives and the DOJ spent the next three months or so negotiating with Trump’s lawyers. Finally drawing the foregone conclusion Trump was not operating in good faith, the DOJ obtained a subpoena for the additional files, then took another month to send the FBI to Mar-a-Lago—where officials were prevented from conducting a thorough search but did discover additional boxes of material, including ones marked classified and top-secret. By that point, the DOJ was aware that Trump and/or people working for him were engaged in obstruction of justice, and were almost certainly in violation of Sec. 793(e) of the Espionage Act, by willfully retaining defense information that could be used to injure the United States or benefit a foreign nation. Yet it was not until August that the DOJ finally obtained a search warrant, and then only for Trump’s winter residence. That search yielded another 13 containers of material, plus seven top-secret documents found in his office and three classified documents found in his desk, establishing his consciousness of their presence.
The the DOJ’s foot-dragging in the Mar-a-Lago documents case has driven a team of lawyers, including a former US Attorney and a former chief of the Justice Department’s Fraud Section, to take the extraordinary step of drafting and publishing the sort of exhaustive prosecution memo that precedes a decision to indict in order to demonstrate to the department just how feasible a prosecution would be.
These later derelictions by the DOJ should not distract us from its squeamishness at examining the authorship of the January 6, 2021, invasion of the Capitol. The excuse given by many worthy members of the bar for the DOJ’s delay is prosecutors generally begin with the small fry—in this case the Capitol marauders—and then work their way up the ladder of command. But this technique presupposes that the small fry are “in privity” with—and mutually obligated to—the decision-makers, as lawyers like to say. With the exception of Enrique Tarrio, leader of the Proud Boys, arrested two days before the invasion for planning disruptive pro-Trump protests, and Stewart Rhodes, leader of the Oath Keepers, just convicted of seditious conspiracy, the more than 900 marauders that the US Attorney’s office in Washington, D.C., has actually pursued received their instructions in a one-way communication over the Internet.
The Justice Department’s resolve in prosecuting nonentities stands in striking contrast to its deference toward those connected to power. Both Dan Scavino, Trump’s White House deputy chief of staff for communications, and Mark Meadows, White House chief of staff, ignored subpoenas issued by the January 6 committee, prompting the committee to make a criminal referral to the DOJ for contempt. Although both men had long since left office—making any claim of residual executive privilege they might have asserted tenuous at best—the DOJ declined to indict. Nor has the department ever given any explanation for that refusal.
Another of the potential crimes that jail can prevent is witness tampering. January 6 committee vice-chairwoman Liz Cheney stated that Trump placed a call to a White House staffer while this person—subsequently identified as Cassidy Hutchinson, a former Trump White House aide and a prolific source of damning testimony—was a witness. And Michael Cohen, Trump’s former lawyer and fixer, says he delayed his own testimony before the House Oversight Committee because of threats against himself and his family originating with Trump. A one-man crime wave, Trump remains free to strike again and again.
In short, Garland’s stout declaration that “no person” is above the law is nonsense.
Others vested with the power to indict—though none as well-resourced as the US Attorney General, have also disappointed—and the conviction obtained this week of the Trump Corporation by the Manhattan District Attorney for extended but relatively petty tax cheating does little to redeem the record. Although the trial prosecutor fingered Trump himself for personally committing tax fraud, the office instead opted to indict the company. Earlier, DA Alvin Bragg had effectively suspended the investigation of much more serious tax, bank, and insurance irregularities, precipitating the resignations in protest of two top lawyers specially hired for the case. Bragg’s predecessor, Cyrus Vance Jr., had concluded by the end of 2021 that that case was strong enough to be sent to a grand jury, but at the moment of truth returned to private practice, leaving it to Bragg to follow through.
Established democracies elsewhere show no such solicitude toward leaders who have broken the law. Jacques Chirac and Nicolas Sarkozy, both of them former presidents of France, were charged, convicted, and sentenced for corruption and other crimes. Italy prosecuted President Silvio Berlusconi repeatedly, sentenced him to prison for tax fraud, and banned him for five years from serving in government. And in Israel the authorities indicted a sitting and now returning prime minister, Benjamin Netanyahu, whose trial is currently underway. These countries, unlike our own, have earned the right to say that “no person” is above the law.
After almost two years of inaction following our own brush with autocracy and a coup d’état, it was only the results of some of the elections just ended, rather than any measures taken by our system of justice, that have revived the belief that the American experiment might endure. Even so, 170 winners of last month’s elections still endorse Trump’s version of the 2020 presidential election and are presumably prepared to do what they can to undermine results not to their liking in 2024. The Freedom Caucus of the GOP’s new House majority for its part is threatening to defund the Justice Department and impeach Garland. With such dangers pending, Merrick Garland’s celebrated judiciousness may soon be understood as being no more than a failure of nerve.