The Country Is Paying for Merrick Garland’s Failure to Prosecute Trump

The Country Is Paying for Merrick Garland’s Failure to Prosecute Trump

The Country Is Paying for Merrick Garland’s Failure to Prosecute Trump

The special counsel may indict Trump for something, but it’s already too late to stop him from running for president again.


Former game-show host and attempted coup leader Donald Trump spoke at the far-right hoe-down known as the Conservative Political Action Conference this weekend. There, he announced that he would continue his campaign for president even if he’s indicted by any of the various prosecutors looking into his misdeeds.

The announcement is hardly a surprise. There is no legal bar—no constitutional prohibition—that prevents a person under indictment from running for office, nor would Trump be the first politician to do so. And, as Julius Caesar once taught the Western world, the best way to avoid the legal consequences of one’s actions is to cross the Rubicon and ensconce oneself in absolute political power. Trump is far from the first guy to be willing to break a republic in order to dodge personal responsibility.

I never thought a mere indictment would stop Trump from running again. He lacks the capacity for humility or shame that might make a normal person abandon their political ambitions, and his dangerous fans are so committed to the authoritarian and brutal future he offers that mundane concerns like “the rule of law” mean nothing to them. Trump will treat an indictment the way Cersei Lannister in Game of Thrones treats a last will and testament: as a piece of paper that can be ripped up and ignored so long as you’ve paid off the right people.

Still, I did think a conviction and prison time might have put a stop to his campaign. A conviction wouldn’t itself have barred Trump from running for office, but a conviction for his attempt to overturn the election could theoretically have been used to trigger Section 3 of the 14th Amendment, which prohibits rebels from running for federal office. And even without that untested constitutional theory, real prison time might have disrupted Trump’s ability to be seen as a viable presidential candidate by his fellow Republicans. At the very least, it would have put a damper on the endless stream of free campaign ads legacy media like The New York Times and Fox News keep giving to the man. It’s even possible that some prosecutor would have tried to stop Trump’s campaign fundraising from jail with a creative application of “Son of Sam” laws, which prevent criminals from profiting off of the publicity of their crimes while in jail, even though the conservative-controlled Supreme Court would likely have allowed Trump to keep raising dollars.

All of these hopes and dreams and theories belong in the “what if” dustbin, because Trump will not be convicted and jailed for trying to overturn the 2020 election before he runs for president again. And for that, there is really only one person to blame: Attorney General Merrick Garland.

Garland has now passed the buck to special counsel Jack Smith, and the same people who told us that Bill Barr was going to be an honorable attorney general, or that Robert Mueller was going to be a dogged investigator, or that Rod Rosenstein was going to stand up to the Trump White House, now tell us that Smith is the perfect “closer” to bring Trump to justice. For what it’s worth, I actually believe that Smith will indict Trump for something, eventually, if only to justify his own existence.

But we are already in March of 2023. The Iowa caucuses are on February 5, 2024. The New Hampshire primary for Republicans is on February 13. Trump is the presumptive front-runner in both of those contests. Even if indictments come down today, it’s simply unlikely that the wheels of justice will spin fast enough to take us from charges to trial in less than a year. At warp speed, putting together a trial for a former president in under a year is daunting. Such a timeline is functionally impossible when you consider the inundation of motions, appeals, and requests for delays Trump’s legal team will throw up. Trump’s lawyers will try to bring all of those appeals to the Supreme Court, and we already have a mountain of evidence that this Supreme Court, stacked as it is with Republican culture warriors, is willing to go as fast or as slow as it needs to, depending on which speed helps the Republican Party the most. Remember, this Supreme Court ruled that February 2022 was “too close” to the November 2022 midterms to force Alabama to change its racist congressional district maps before the last federal election. The idea that these same people would do anything to hurt the Trump campaign within the penumbra of the 2024 election is magical thinking.

It’s hard to conceive of a circumstance in which these five conservative justices would allow the presumptive Republican nominee for president to be tried while actively running for that office. It’s impossible to conceive of a situation where they would allow him to be convicted, sentenced, and physically jailed while he’s a viable contender for a major party nomination. The time for holding Trump accountable in a way that would have prevented or even temporarily interrupted his quest to reconquer America passed a long time ago.

Merrick Garland either knows all this, or he is a drooling fool. And I don’t think he’s a fool. Indeed, when this all comes to naught, when Trump strides across the stage at the Republican National Convention or, heaven help us, gets sworn in again as a free man in January 2025, Garland and his legion of defenders will claim that more could not have been done. He’ll say it was impossible to bring Trump to trial before the 2024 election cycle.

He will be wrong. We’ve already seen the January 6 select committee gather all the information needed to bring charges against Trump, and it did so in less time than Garland is taking, and did so without the awesome investigatory powers of the Department of Justice and the FBI. It took the select committee 11 months to go from being formed out of thin air to holding its first public hearing (by which point the committee had almost all the information it would use in making the case against Trump to the public).

A serious investigation focused on Trump’s role in the attempted coup and scheme to defraud the public with fake electors could have brought charges against Trump within a year of the January 6 attacks. People like Cassidy Hutchinson, William Barr, and Pat Cipollone who freely talked to Congress would have also talked to the FBI over the course of 2021, while investigators with their eyes on the ball would have put the absolute fear of God into Mark Meadows about whatever the hell he’s hiding. Indictments at the start of 2022 would have set Trump up for a year of squirming as he tried to avoid his reckoning, and now, as we’re into 2023, we could finally be at the point where that trial was imminent, long before anybody started voting.

Whether such focus would have led to a conviction is anyone’s guess, but here again Garland’s defenders have accepted another DOJ excuse for delay: the fallacy that a longer investigation somehow magically leads to a conviction. In reality, there’s nothing a prosecutor can do to guarantee a conviction, especially in a high-profile case. All they can do is make their best case and hope a jury doesn’t nullify it. There are no guarantees, but as Wayne Gretzky said, you miss 100 percent of the shots you don’t take.

By not taking the shot against Trump as early as possible, Garland has all but doomed his investigation to run out of time. Now, even if Trump is brought to trial, the outcome will not be determined by a judge and jury but by the results of Super Tuesday. Don’t believe me? Good luck trying to get the Republican Party’s leading vote getter into a jail cell next year because 4D chess player Garland put on a really good case. Trump is now more worried about Ron DeSantis than about the Department of Justice.

None of this required the observational powers of hindsight. People who have been serious about holding Trump accountable have been trying to point out the need for an aggressive timeline since it became clear that Garland was committed to slow-walking the process (for instance, here’s me back in 2021, and here’s me on the first anniversary of the January 6 attack). Garland has known, or should have known, this entire time that if Trump were allowed to glide into the 2024 election cycle, he’d wriggle off of even the most well-prepared hook. A prosecutor more committed to catching this particular bad guy would have fished with dynamite.

There are other investigations, of course, run by more dogged public servants than Garland. But neither New York’s investigation into the Trump Org’s financial crimes nor Georgia’s investigation into his phone call urging election fraud, nor even the late-breaking investigation into his stealing of classified documents, were ever likely to land Trump in prison. Even if he’s convicted of any of those crimes, Trump—a first-time offender who happens to be wealthy and white—would likely end up with some kind of harsh fine and stern talking-to. Only Garland, investigating a plot to defraud and overthrow the government, had a sufficient mandate to prosecute Trump for something that could have resulted in significant incarceration.

The full failure of Garland’s strategy (and I’m being generous by calling his strategy a “failure” instead of a well-laid plan to help Trump escape accountability) will not be acknowledged for some time. Like I said, I expect Jack Smith to charge Trump with something, sometime. And on that day (I’d put the over/under sometime around June), Garland defenders will fall over themselves, congratulating Garland on a job well done, moving the goalposts to make it seem like indictment, not conviction, was the victory condition all along. Then, when the Supreme Court puts the trial in quicksand for a year, Garland will say, “Welp, I tried super hard you guys, but it was just impossible to go any faster” and go off to write his book.

But we’re in the endgame now. From the moment Trump failed in his attempt to overthrow the government, his sole goal has been to avoid accountability so he could try to take over the government again. He has succeeded. Garland has let him. All that is left is the shouting, though there will still be a lot of that.

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