Garland, Trump, and the Impossibility of Apolitical Politics
The Attorney General can't please everyone, so he's got to please himself.
A Glenn Thrush report in today’s NYT, “Turning Point for Garland as Justice Dept. Grapples With Trump Inquiries,” both shines additional light on the near-impossible politics around the case and casts doubt on whether the Attorney General is up to navigating the situation.
Attorney General Merrick B. Garland, a stoic former federal judge intent on restoring rule-of-law order at the Justice Department, gradually came to accept that he would need to appoint a special counsel to investigate Donald J. Trump if the former president ran for the White House again.
But that did not mean he liked doing it.
Mr. Garland made it clear from the start that he was not inclined to tap outsiders to run investigations and indicated that the department was perfectly capable of functioning as an impartial arbiter in the two criminal inquiries involving Mr. Trump, according to several people familiar with the situation.
But the appointment of a special counsel, Jack Smith, on Nov. 18, and a painstakingly planned rollout of the announcement, signaled a significant, if subtle, shift in that approach. Mr. Garland has shown a growing willingness to operate outside his comfort zone — within the confines of the rule book — in response to the extraordinary circumstance he now finds himself in: investigating Mr. Trump, a top contender for the 2024 nomination of a party that is increasingly rallying around the charge that Mr. Garland has weaponized the Justice Department against Republicans.
“There is a political dimension that can’t be ignored — this is an investigation that is being used by the target and his allies as a mobilization moment in a political campaign,” said Daniel C. Richman, a former federal prosecutor and a law professor at Columbia University. “That’s why you are seeing the department leaning forward in making these moves, and getting as much detailed information about an ongoing investigation out there as it can.”
Aside from Trump’s making the inevitable—a third run for the White House—official, nothing has changed. Prosecuting a former president, let alone the most politically polarizing president in American history and the past and likely future opponent of the sitting president, was always going to be politically fraught.
Still, Garland has been shrewd:
In studying how to proceed, Mr. Garland has steered clear of issuing the unusual public statements favored by the former F.B.I. director James B. Comey during the investigation of Hillary Clinton’s emails, believing that those actions, and political meddling during the Trump administration, violated department protocols.
The department’s leaders have, however, tried to counter Mr. Trump’s claims that they are engaged in a partisan witch hunt intended to destroy him.
Top officials, led by Deputy Attorney General Lisa O. Monaco, have leveraged Mr. Trump’s court challenges in the investigation into his handling of sensitive government documents as an opportunity to broadcast previously hidden details, while adhering to department policy.
The Justice Department did not officially support the effort to unseal the affidavit used to obtain the warrant for the search of Mr. Trump’s Mar-a-Lago club and residence in August. But when Mr. Trump’s lawyers did not oppose that bid, department officials seized the moment, and used the filing to offer a detailed timeline of Mr. Trump’s actions that established the public narrative of the case.
After Mr. Trump sought an independent review of documents retrieved from Mar-a-Lago, department lawyers discussed sharing several photographs of the seized records to provide visual proof that Mr. Trump had not fully complied with a subpoena in May that required the documents’ return, according to people familiar with the situation.
Mr. Garland did not object to the decision to release a single picture of the files, some bearing high-level classification markings, arrayed on the floor of Mr. Trump’s office — now the defining image of the investigation.
More on that later. As to the special counsel:
He cast the appointment of Mr. Smith as compulsory, dictated by the section of the regulation, derived from the law that defines the department’s authority, that allows an attorney general to install a special counsel under “extraordinary circumstances.”
Mr. Garland appears to view Mr. Smith as more of an internal decision maker than a public buffer: The attorney general intends to follow the letter of the regulations and will most likely accept Mr. Smith’s findings unless his conclusions are “inappropriate or unwarranted” under the department’s precedents, a person familiar with his thinking said.
That seems prudent. But it will have next to zero impact on public perception: those of us who think Trump should be prosecuted don’t need much persuasion that the investigation is just; those who think this is a Democrat Party™ witch hunt are unpersuadable.
Already, Mr. Garland is dealing with two comparable cases, both inherited from the Trump administration, and in each he has appeared inclined to abide by the decisions of the prosecutors overseeing the investigations.
Mr. Garland did not, for instance, overrule John H. Durham, appointed under Attorney General William P. Barr to investigate the F.B.I.’s inquiry into the Trump campaign’s links to Russia, when he brought two criminal cases, now widely seen as flimsy, that resulted in acquittals. He has also kept an arm’s length from the investigation of President Biden’s son Hunter by a Trump appointee, David C. Weiss, the top federal prosecutor in Delaware, even though he rejected the idea of appointing a special counsel.
This was a lose-lose situation for Garland, who made the best available bad call in letting politically-motivated investigations run in a futile attempt to appear apolitical.
Mr. Smith has been on the Justice Department’s radar for a while. One former official described him as a “golden unicorn” — a former prosecutor with three decades of experience investigating politicians and war criminals who is registered as an independent.
Another selling point: Mr. Smith’s time abroad during most of Mr. Trump’s administration. Since 2018, he has worked as a war crimes prosecutor in The Hague and can credibly claim to be approaching the investigations with an outsider’s perspective.
The appointment also merged two sprawling investigations, involving dozens of prosecutors operating on separate tracks, under a single supervisor, Mr. Smith.
Department officials emphasized that Mr. Smith would not start from scratch but would bring existing investigations to their conclusion and develop potential links between the two lines of inquiry.
Again, I’m not sure who will be reassured by any of this. But, yes, Smith appears to be an ideal candidate for the job and there’s value in having a seasoned pro coordinate these overlapping investigations.
The documents case appears to be proceeding more quickly than the Jan. 6 investigation. Public filings and interactions between law enforcement officials and defense lawyers indicate that a lot of work remains, and law enforcement officials with knowledge of the investigation emphasized that the department was unlikely to sign off on charges unless it was convinced that it would prevail in court.
Evidence made public points to a case based on a section of the Espionage Act, which makes it a crime to mishandle closely held national defense information — and a potential obstruction of justice charge stemming from the former president’s refusal to comply with the subpoena in May.
“The obstruction charge looks more and more to be the most compelling charge for the government to bring,” said David H. Laufman, the former chief of the counterintelligence unit of the Justice Department, which is leading the Mar-a-Lago investigation.
One of the biggest questions Mr. Smith is likely to face is whether prosecutors would consider bringing only an obstruction case without addressing the underlying possibility of an Espionage Act violation. Some prosecutors see that as the most straightforward path to a prosecution. Mr. Garland’s announcement of a special counsel referred to obstruction three times.
Again, this is a no-win situation. The last thing Garland wants is to bring a case against Trump and lose. At the same time, even non-Trumpers will raise an eyebrow if the only charge brought is for obstruction. While it happens routinely, the public perception—indeed, my perception—when it happens is that the prosecution couldn’t find enough evidence to make a case stick and is using obstruction as a backdoor way to save face.
To be sure, taking box after box of government documents to Mar-a-Lago, much less refusing to hand them over when ordered to do so, is a crime. Ordinary folks would surely go to jail for it. But I can’t imagine anyone would be satisfied with that being the thing for which Trump is prosecuted.
Ron Klain, Mr. Biden’s chief of staff, backed his selection as attorney general in early 2021, believing Mr. Garland would be the best person to restore order at the Justice Department after the Trump administration.
For his part, Mr. Biden believed Mr. Garland deserved an important position after the Supreme Court debacle, as did several key Republicans, ensuring his confirmation.
I was skeptical of the choice when it was first announced but was quickly won over when I learned more about his pre-judicial career.
Other factors might have played a part in his selection, according to several Democratic aides. Political advisers to Mr. Biden believed that picking someone with whom the incoming president had a closer relationship, like the former Alabama senator Doug Jones, would be seen by critics as an attempt to control the department’s long-running investigation of Hunter Biden.
In public, Mr. Garland has forcefully rejected suggestions that external political forces have influenced any of his decisions, and he has gone to extremes to avoid the slightest appearance of partisanship.
In October, he initially pulled out of a convention of police chiefs in Dallas when his staff flagged concerns that it could be interpreted as a violation of his ban on political speech in an election year, according to a person involved in organizing the event. He eventually attended, but only after his aides gathered new facts about the event that led them to reconsider.
Again, Garland is perhaps a bit naive if he thinks these actions will mollify Trumpers. But all he can do, really, is be above reasonable reproach.
Mr. Garland’s critics on the left have also expressed concerns about Mr. Smith’s appointment, contending it would delay a decision on the cases until after the 2024 campaign.
Mr. Garland resisted that characterization, and Mr. Smith, who is recovering from a knee injury in the Netherlands, issued an even more emphatic statement, saying that the “pace of the investigations will not pause or flag under my watch.”
If the rollout seemed to outsiders like a typically scripted statement, it was seen by the attorney general’s allies as a sign, albeit a modest one, that he is willing to make adjustments to confront the challenges ahead.
Mr. Garland waited three days before delivering a brief public explanation for the search of Mr. Trump’s Florida estate in August, giving the former president’s supporters time to spread vitriol and conspiracy theories.
When he appeared before cameras to announce Mr. Smith’s appointment three months later, he seemed determined not to repeat the delay, offering a far more expansive statement an hour after he had signed the order.
“Appointing a special counsel here is the right thing to do,” Mr. Garland said.
The political atmosphere is next to impossible to navigate. Garland isn’t likely to win over the skeptics but I don’t think they’re win-overable. I don’t know that anyone else could do any better than he’s doing given all of that.
Maybe, but I wouldn’t be so sure. Even the average person will suspect that Trump kept those documents for nefarious purposes. Especially, as seems likely, there are missing documents that can’t be recovered.
Just because somebody doesn’t believe you doesn’t mean you aren’t neutral. This case is cut and dry regarding objective facts. There’s no wiggle room now that Trump is no longer president. I don’t care what garbage-ass theories the right puts out there. He broke the law and–unlike an average person–was given ample time to fix the problem and chose not to. Anyone who thinks there is doubt in this case is an idiot.
I would be satisfied seeing Benito in prison even if it is for some low-level, technical misdemeanor. Really, Al Capone was convicted of tax evasion. I don’t care how he ends up behind bars, as long as he ends up behind bars.
There are technical reasons to use a Special Prosecutor, one of which is legislation that makes it difficult for Congress to interfere with funding the investigation.
And, why should anyone care whether unpersuadable people can be persuaded, seems pretty irrelevant to me. Who cares?
@charon:
Well, “who cares” is one way to look at the matter, but it fails to take into account what Jan. 6, 2021 and subsequent events have proven to us–namely, that some Trumpers are violent and dangerous.
January 6th should NOT be about politics. An attack on our Government is an attack on all of us. Contrary to the claims of some, people doing time are NOT political prisoners. They broke the law. Period.
The MAL Documents case should NOT be about politics. Trump broke the law. Period. That he makes all kinds of claims of victimhood, or lies about others doing the same thing, is irrelevant.
Just because those most guilty try to make it about politics, doesn’t make it political. This is a serious problem we face in this country…we allow the worst amongst us to dictate the narrative.
@CSK:
Which they will be with or without a Special Prosecutor.
@daryl and his brother darryl:
If one of two major parties is embracing Fascist behavior, which Jan 6 was symptomatic of, that seems pretty political to me.
@daryl and his brother darryl:
Now that the GOP controls the HOR, it seems the Jan. 6 Committee investigation is ending by GOP choice. That looks to me like the GOP making Jan. 6 political in a pro-insurrection sort of way.
@charon:
Was putting down Hitler political?
It’s true that fighting the fascism of DeSantis is, at this point, political.
But January 6th was a crime against this country. Period. Politicians perpetrated the crime. But that doesn’t make it political, as much as those who committed the crime would like you to believe it is.
@charon:
Oh, probably. But it might push some of them over the edge.
You understand that I’m looking at this through the point of view of someone who could be the victim of political violence, not that I am one in real life.
I like the literary reference in the subtitle. Obscure.
And yes, at some point the what-ifs pile up uncertainty and the decision tree becomes so tangled Garland might as well just do the right thing, secure in the knowledge he was going to accept a well deserved retirement after this anyway.
As to satisfied. a) I doubt he’ll do prison time no matter what happens and b) I’ll take what we can get. In a way the triviality of the documents case is a plus. While the faithful could shout that he was only committing what looked like sedition to overthrow the cabal of child sacrificers it’ll be harder to make a case he kept random classified documents in order to…what? If he gets, say, a few years, suspended because of his age and health, it’s harder to say the deep state wasn’t just trying to get their stuff back. The triviality may ease his fade into obscurity.
When the document stuff hit I thought it might be reaction to intel showing leaks from Mar-a-Lago. But as it develops it smells more like just penny ante assholery.
Or a MAGA republican, but you already said that.
I must be nobody.
@charon:
Sure…MAGAt’s would prefer that all Jan 6th charges be dropped, and Hunter Biden be arrested immediately and executed without cause or trial.
That’s why we have a legal system whose symbol is Lady Justice wearing a blindfold. It’s not perfect, of course.
@gVOR08:
I thought it was a reference to Ricky Nelson and “Garden Party”
@CSK: The fact that some MAGAts are violent and dangerous will not be altered by putting Trump (or most anyone else for that matter) in jail. There are ways to address the violence and danger that MAGAts represent, but the comment policies of the site may prohibit commenters from mentioning them.
@daryl and his brother darryl:
Herr Hitler came to power by a political process, subsequent to being jailed in connection of the violence of the “Beer Hall Putsch.”
Politics “by other means” as has been observed.
@gVOR08:
That’s the most likely outcome, kind of a golden plea deal with a suspended sentence and probation.
The problem is such a deal would include an allocution in court, and El cheeto is incapable of admitting wrongdoing. It’s an actual impossibility. So, no matter how lenient the terms are, he will insist on a trial.
He won’t wind up in prison, much as he deserves to, but he’ll do everything possible to end up there anyway. It’s his nature.
@daryl and his brother darryl: As i’m sure you are really aware, both of the things you are arguing about are both political and matters of justice and/or criminal/treasonous (in the larger public sentiment sense but probably not as defined in the Constitution) behavior. Knowing these both to be true does not serve to mitigate responses or inoculate political actors who decide to “do (at least in your eyes) what is right.” The society is broken and has been for a long time. We are simply at the point of having no more road to kick the can down. The next step is War of Northern Aggression, Part II.
@charon:
Yes – absolutely.
But once he invaded Poland efforts to stop him were no longer political.
Which is why the possibility of a MAGA or two causing a hung jury does not bother me – to me, what is important is going to trial and adding evidence to the public record. By the time the process would reach the point of surrendering for incarceration, he will be so addled by brain worms it will not matter anyway.
@just nutha:
Yes…and therein lies the problem.
A crime is a crime. There is right, and there is wrong.
The desire of our political punditry to “both-sides” everything is dangerous at the least, and probably worse.
There is no “other side” to attempting to overthrow the Government. It is a crime.
There is no “other side” to stealing Government documents. It is a crime.
And Lady Justice doesn’t (shouldn’t) care if you are a Republican or a Democrat.
Obviously the system isn’t perfect, eg. a corrupt SCOTUS.
@daryl and his brother darryl: Yes. I regarded Ricky Nelson’s comeback as pretty obscure.
@daryl and his brother darryl: I would disagree. In much the same way that “war is diplomacy by other means,” so is the relationship between war and politics.
@charon:
Agreed, just charge him and I can care less if he “walks” less than 24 hrs later, honestly, the act of charging him will hopefully be enough to get that tiny 1-3% slice of voters who seem to decide elections nowadays to perhaps reconsider their love of all things Trump. Even if he walks he will be seen as damaged goods, and that is good enough for me and I bet millions of others in this country.
Well, I’m not going to quibble about public perception, but I’m going to work on yours.
The reason that obstruction of justice exists as a crime is this exact scenario – the criminals obstructed justice effectively, if obviously. And so we have a crime to charge them with, which we do, and gain convictions.
Yes, they got away with the primary crime, but they didn’t get away scott free. That’s the point of having this particular crime on the books, not “saving face”. It is not there to save face. It’s important. It’s valuable.
This is kinda right. But, I believe there is a chunk of the people between the already persuaded and the unpersuadable. How big that group is is hard to say, but I suspect it is big enough to have a non-zero impact on public perception as a whole. Focus on persuading those people in the middle.
Who knows. You might even get some of the witch hunt faction in the end – those folks have shown themselves to be lemmings so they won’t so much abandon Trump as follow the bigger crowd.
@inhumans99:
In this situation, you must go by the book, dot the i’s, cross the t’s, it’s the credible way to do it.
I do not think just charging would impress anyone, the evidence needs to be presented in a trial. It is only the verdict, nothing else, that I do not much worry about.
@Jay L Gischer: You seem to be arguing that it’s valuable to be able to convict people of something, anything, as long as it’s a conviction. I won’t argue the point, but I also don’t agree.
@Just nutha ignint cracker: So, you’re fine with things like witness tampering, lying in interviews, destroying evidence? That’s ok with you?
@Jay L Gischer: Not particularly, but “convict them of something, anything, as long as it’s a conviction” has played a role in making our justice system the one with the slogan “if you have the right lawyer, we have the best justice system in the world.”
And I will note that prosecutors have done plenty of “witness tampering, lying in interviews, destroying evidence” themselves.
(Damn. I was going to avoid this argument. Well done Jay!)
@daryl and his brother darryl:
I think that actually understates the case. There are dumb laws, and bad laws, and “they broke the law” has always been the refuge of the oppressors, whether it be spitting on the sidewalk or vagrancy or illegal immigration.
This is not that. They attacked the foundations of our democracy. That goes way beyond “they broke the law”. And that’s why it’s not partisan or political; it’s fundamental.