Special prosecutor Jack Smith’s latest indictment of Donald Trump, for his role in fomenting the attempted coup of January 6, 2021, marks a dramatic new turn in the effort to hold the authoritarian ex-president accountable for his actions. Citing four federal counts, including the abridgment of voters’ civil rights under the Enforcement Act of 1879, enacted to punish Klan-led racial terror in the South, Smith laid out a detailed account of the many lies, intimidation ploys, and conspiratorial plots Trump launched to illegally reverse the outcome of a presidential election he knew he’d lost.
Smith also carried out his investigation and drafted Trump’s indictment at a remarkably swift pace—Attorney General Merrick Garland appointed him only last November—even as he was also overseeing the probe into Trump’s mishandling of sensitive federal documents at his Mar-a-Lago compound. So while it is indeed a relief to ponder the prospect that Trump may face actual consequences for his subversion of the Constitution and his governing oath, it’s also vital to ask ourselves just why and how a case this important for the rescue of whatever remains of our democracy, and founded on a great deal of already available public information, aroused such belated and half-hearted interest from the justice system.
The indictment’s chronicle of the events surrounding Trump’s coup scheme is painful to revisit, largely because it exposes how jury-rigged and vulnerable to abuse our patchwork system of election oversight is. With the instincts of a true Mob chieftain, Trump sought out all those weaknesses, cajoling election officials and state attorneys general, and demanding that his Justice Department investigate already discredited campfire tales of voting corpses, vote tabulations outnumbering actual populations, and mysterious truckloads of pre-completed ballots transported across state lines. All the while, Trump made a point of broadcasting his lies far and wide on social media, all the while summoning his movement’s wrath against anyone standing his way, from election workers conducting ballot counts to his own vice president.
Alas, the same basic profile of a sclerotic and unresponsive status quo holds for the federal enforcement of election law, as the institutional background behind Smith’s January 6 probe makes all too clear. From the outset of his tenure atop the Justice Department, Attorney General Merrick Garland evinced little interest in mounting any such investigation, fearing that the GOP’s permanently aggrieved MAGA base would view it as a weaponized, partisan effort to hound Trump into political irrelevance. As a blockbuster report by The Washington Post’s Carol D. Leonnig and Aaron C. Davis revealed this June, for a full year after the insurrection, Garland’s team looking into January 6 “consisted of just four prosecutors working with agents with the U.S. Postal Inspection Service and the National Archives and Records Administration.” Garland also shunned any wider probe into Trump’s coterie of political shills and hack-legal advisers building the case for him to gin up a bogus roster of alternate electors from swing states to throw Congress’s January 6 certification of results into chaos. Those sycophants and grifters are now unnamed co-conspirators in Smith’s indictment, and will be subject to future legal proceedings. In the end, Garland didn’t mount an investigation into the electors scheme until 15 months after the failed coup attempt.
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Garland’s extreme solicitude to avoid courting the impression of promoting partisanship or other unlovely kinds of divisiveness in the pursuit of accountability on high is clearly a personal shortcoming—but it’s also a more widespread malady afflicting the culture of legal oversight in Washington. Leonnig and Davise reported that Garland and senior DOJ officials even hesitated in authorizing sedition charges against members of the Oath Keepers militia group, who committed some of the worst (and most coordinated) acts of violence outside the Capitol. Things got so bad in the Justice Department and the FBI alike that one Justice official complained that “you can’t use the T word” in deliberations over ultimate responsibility for the January 6 attacks—a state of affairs not unlike a forensic inquiry into the sinking of the Titanic that makes no mention of an iceberg. Other legal figures in the federal justice system were also taking anxious notice of the Justice Department’s dilatory approach to January 6. James O. Carter, a federal judge presiding over a civil suit involving the crackpot proposals of John Eastman to seize the presidency under the clouds of confusion kicked up by the fake electors’ slates, bluntly pronounced the effort a “coup in search of a legal theory,” adding that “the illegality of the plan was obvious.”
“More than a year after the attack on our Capitol, the public is still searching for accountability,” Carter went on to observe. “…If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”
Even so, Garland and his adjutants continued to drag their feet, until they were finally shamed into action by the work of the House Select Committee to Investigate the January 6 Attack on the US Capitol—and by the news last November that Trump was going to seek another term. In other words, Justice officials only relinquished Garland’s staid, politics-last MO thanks to, well, politics.
All this was particularly baffling coming from Garland, who first came to widespread public attention when Mitch McConnell blockaded his nomination by Barack Obama to the US Supreme Court, on the totally fabricated grounds that the pending confirmation hearing would come too close to the 2016 election. If anyone should have understood that the forces of politics can’t simply be quarantined out of Justice Department inquiries, it should have been Merrick Garland.
But of course Garland also exemplifies a mythic, meritocratic vision of government operations that’s endemic among the higher echelons of Democratic Party officialdom. The deranged character of the insurrection at the Capitol—stoked by Trump’s delusive refusal to imagine a world where he might be a loser—is a first-order refutation of that theory of power. And as Carter noted, the longer federal officials put off reckoning with that basic truth, the more they court a replay—together with a frontal assault on all the household gods of democratic liberal governance that would be far worse. What’s more, of course, Garland has permitted the usual cohort of Trump enablers in GOP leadership—who were briefly scandalized and appalled by January 6—to settle into election denialism as officially sanctioned party dogma.
Smith’s indictment may well undo some of that prospective damage, if it yields convictions for Trump before a D.C. jury. Certainly, the fact that Trump himself is the only named defendant in the document represents a sea change from Garland’s own manifest allergy to “the T word” in Justice’s internal confabs.
But the broader fog of self-administered meritocratic make-believe still dogs the setting of priorities in Biden’s Justice Department. The thing that Merrick Garland feared most in his agons over the specter of a Trump indictment—MAGA world’s politically driven castigation of the Justice Department’s impartiality—was always going to be a given, as any sentient observer of American politics over the past seven years well knows. (Not that additional proof is required, but see the House Judiciary Committee’s recent demented inquisition of Garland’s law-enforcement peer FBI Director Christopher Wray as an all-too-representative case in point.)
As for holding off on robust January 6 inquiries until Trump had announced his own reelection candidacy, that’s a still more puzzling call. The delayed reaction appears to be steeped in the fanciful notion that Trump presented a clear-and-present danger to American democracy only when he again took up the mantle of a presidential run—and needed to be treated as such when a nomination might be in hand. That is, of course, a baldly political calculation, but, more to the point, a mistaken one, as Trump continues to fundraise and demagogue around his serial criminal and civil indictments to open up an enormous lead in the scrum for the 2024 GOP presidential nomination. And regardless of Garland’s own prim and meritocratic strategic reckonings, he’s now assured that Smith’s twin federal prosecutions of Trump in the Mar-a-Lago and January 6 cases will be driving political debate for months to come. The simple truth is that ever since the Trump-led GOP began its multifront offensive against the rule of law and the basic functioning of our government, the preservation of our democracy has been a political cause. For federal legal authorities to pretend otherwise is to forsake the basic principle of public accountability for the powerful when it’s most urgently needed. So as we celebrate the historic achievement of Jack Smith, let us also pray that we have absorbed, once and for all, the crucial lessons of the no-less-historic folly of Merrick Garland.