Merrick Garland is Getting a Bum Rap
The claim that he is responsible for Trump’s evasion of accountability is clearly wrong.
Get ready for a contrarian entry that will no doubt provoke the ire of many supporters, as did the shorter piece that ran yesterday in The New Republic. If you find yourself reflexively opposed before you even look at it, I can only say you’ve got a lot of company and ask you to make your best efforts to suspend judgment and evaluate the evidence. Thanks.
– HL
Some time in the next five days, Merrick Garland will step down as the nation’s 86th attorney general, bringing to a close one of the most distinguished careers in public service in the last century.
But the accounts of his departure will likely include widespread criticism that he slow-walked the prosecution of Donald Trump. Critics allege that, had he moved more quickly, Trump might have been held accountable for his misdeeds, and the recent election might even have turned out differently.
The charge of foot-dragging has become a meme, likely tarnishing Garland’s legacy. Elie Honig, writing in New York Magazine, was particularly cocksure:
"The debate about whether Garland took too long to charge the Trump cases—or to appoint a Special Counsel to get the job done—is over. Exhibit A: there’s not going to be a federal trial before the 2024 election. End of story."
But the charge is a bum rap.
Garland made investigating Trump a top priority, even as he also focused on restoring integrity to the DOJ. The investigation was extraordinarily complicated and slowed by unusual and unpredictable obstacles, such as executive privilege issues and the Supreme Court's lawless immunity ruling. Moreover, events entirely outside of Garland’s control ensured that Trump would not be held accountable before the election. Finally, Garland’s efforts, among others, made Trump’s criminality more than clear to the public, but many voters were content to reelect a felon and serial sexual offender.
The storyline that Garland let moss grow on the investigation—some say until Smith came aboard, others until the work of the January 6 Committee embarrassed the Department—doesn’t survive scrutiny.
Within days of being sworn in as Attorney General on March 21, 2021, Garland gathered prosecutors working on any aspect of the Trump investigations—including U.S. attorneys, the national security division, and the public integrity section—and instructed them to “follow the connective tissue upward.” He told them to aggressively follow the money in pursuit of connections between the January 6 marauders and Team Trump. Garland charged the entire team to proceed without restrictions, even if it led to Trump himself.
As the New York Times recently reported, this line of investigation didn’t pan out, but it was a reasonable approach and shows that Garland and his deputy, Lisa Monaco, were focused on the Trump trail from day one.
A second recurring criticism is that Garland’s lack of imagination led him to work the case from the “bottom up,” focusing first on ground-level insurrectionists. This approach resulted in the largest group investigation in DOJ history, with charges against over 1,500 individuals. However, it is false to claim that Garland exclusively pursued this strategy. For example, Garland and Monaco focused on Rudy Giuliani (later identified as “Co-Conspirator 1”) from Monaco’s first day in office. They executed a warrant at Giuliani’s apartment on April 21, 2021, and undertook a privilege review to access critical evidence without significant delay. Similarly, they expedited the collection of evidence by subpoenaing another Trump lawyer, Sidney Powell (Co-Conspirator 3), who wasn’t positioned to advance claims of executive privilege.
Critics also argue that Garland merely piggybacked on the January 6 Committee’s work, implying that the panel’s efforts spurred the DOJ into action. Not so. Documents cited in the January 6 indictment were not included in the committee’s report. Furthermore, as Marcy Wheeler has documented, phones seized for the indictment—including those of Boris Epshteyn and Mike Roman—were obtained before Jack Smith’s appointment as special counsel.
In any case, the comparison between the committee and the DOJ is flawed. The committee’s role was to present a compelling narrative to the public, while the DOJ had to construct a case that would hold up in court. This task required meeting the highest legal standards, ensuring the evidence could comply with constitutional and evidentiary requirements and persuade a jury unanimously beyond a reasonable doubt. Given the stakes, any misstep in prosecuting Trump would have been catastrophic for the DOJ and the country.
Jack Smith’s report, made public early Tuesday, confirms these points generally and in many particulars. Smith sets out the broad range of investigative measures that preceded his appointment and that “developed a thorough record of independently verified facts.” He also documents the time-consuming sealed privilege litigation that occurred beginning in the summer of 2022 and followed from other investigative work.
There’s additional evidence of DOJ activity in the early months. For example, the early investigation worked the connections between the marauders and Roger Stone, who first showed up in a court filing in March 2021, and Alex Jones. And the DOJ, through the IG’s, office was investigating Jeffrey Clark from early in Garland’s tenure. But the key points above suffice to rebut the widespread suggestion that Garland was indolent before Smith came aboard.
At the core of the attacks on Garland’s is an “if only” claim: If only Garland had focused earlier on the Trump prosecutions, Trump’s cases would have gone to trial already; he would have been convicted; and the nation would have seen his unfitness in terms that could not be ignored.
The claim just doesn’t hold water. Even if Garland had appointed Jack Smith on Garland’s first day in office (March 10, 2021)—about 18 months before he did—there was no way the federal prosecutions would have been completed before the election.
Consider where the cases stood when they were dismissed. The January 6 case faced additional Supreme Court trips to resolve immunity issues before trial could be scheduled. The documents case, still in the court of appeals reviewing Judge Aileen Cannon’s dismissal, faced months of delays over classified documents and Cannon’s extraordinary (or lawless) accommodations to Trump’s delay strategy.
But that’s only half of the process, and likely the less time-consuming half. A conviction isn’t final until appellate review is complete, and until that point Trump can just order the DOJ to drop the case, effectively wiping the slate clean, as indeed he will next week. Considering the complexity of Trump’s cases, a conservative estimate from trial through the full appellate process (typically ending with Supreme Court denial of review, though of course with Trump the Court might well have intervened again) would be 18 months.
In any plausible scenario, we are well past the extra time that Garland critics think was lost. There is simply no tenable way that either of Trump’s cases would have been final before January 20, 2025.
That leaves, it seems to me, some much more speculative charge that had the cases been brought sooner, they would have at least proceeded to conviction at the trial level. And in that event, the chain of speculation goes, the people’s judgment would have been altered by hearing the overwhelming evidence against Trump, and perhaps the fact of his losing.
But this softer claim doesn’t pan out, either
First, the nation did get to see Trump convicted and hear evidence of his perfidy in the New York case. True, the charges there were far less serious than in either federal case. Still, neither the evidence – which, after all, included some nasty sexual misconduct and hoodwinking of the voters – nor the fact of conviction, seemed to move the needle in the view of Trump voters.
Second, prosecutors did publicly present a detailed and voluminous account of the evidence against Trump in the January 6 case. Almost all the evidence in the Smith report already was in that October filing before Judge Chutkan. It again provoked indifference, at least among a majority of the electorate
Put it all together, and the odds are overwhelming that in no possible world is Trump convicted before the election. That’s a galling, infuriating, tragic fact; but it’s got little or nothing to do with Merrick Garland.
The smartest criticism I've heard of Garland's tenure is from commentator Charlie Sykes, who made it on a Talking Feds podcast. That is that Garland walked into the wrong movie. Sykes is on balance well disposed toward Garland – he presents the claim as a “mild defense” in fact – but his nuanced point is that Garland came to the job with the internal model of Edward Levi, the legendary Attorney General who cleaned up the stables in the wake of Watergate and other Nixon abuses, and as a result went too far out of his way to stay above any activity that could be misconstrued as partisan.
Garland of course was intent on repairing the damaging effects of Trump’s assaults on departmental norms, starting with what had been taken as the sacrosanct principle that the White House should never meddle in ongoing investigation. Garland was the ideal person for this role. He had 24-year record of distinction on the DC Circuit preceded by a four-year tenure at the department during the Clinton administration. His reverence for department tradition and a by-the-book approach were legendary.
So yes, Garland had no greater priority when he became AG then restoring the “without fear or favor” apolitical stance of the DOJ. And his determination to reposition the department above the political fray arguably kept him from calling out Trump’s singular offenses early in his tenure, even as he was instructing his prosecutors to pursue evidence against Trump unflinchingly.
But it’s important to ask first whether it really would have been wise—for the Department, for Biden, for the country–had Garland come out of the box immediately after returning to Main Justice with an all-out public condemnation of the recent ex-president? Moreover, critics make a classic cognitive error if they judge Garland’s conduct early in his term through the prism of the unpredictable court delays that came later and, even more, Trump’s improbable political resurrection after January 6. In any event, when Trump did announce his candidacy, Garland immediately installed Smith.
Garland’s conceded focus on restoring the department’s institutional stature didn’t require him to go light on Trump, and the available record suggests that he did not. Perhaps it’s plausible that had Garland come in guns blazing against Trump, without the preeminent focus on restoring the DOJ’s institutional credibility, the cases might have moved a bit faster. But neither that or any other criticism remotely establishes Garland’s responsibility for the ultimate mess of Trump’s evasion of justice.
It’s understandable that some of the frustration over Trump’s escape from justice has been displaced onto Garland. In contrast to Trump’s defenders, Garland embodied the defense of the rule of law. We put our faith (or at least our hope) in him to bring Trump down, and it didn’t happen. It’s easy to make him a scapegoat.
But once you factor in the Supreme Court, Aileen Cannon, the litigation system’s opportunities for delay, and ultimately, a major portion of the American electorate that didn’t reject the idea of a felonious president but actually seemed entertained by the prospect, it never was in the cards to bring Trump to justice before November 5. A different approach on Garland’s part would not have changed the outcome.
It's likely that Garland accepts with relative equanimity the criticism based on his previously expressed view, when Mitch McConnell was hanging him out to dry to keep him off the Supreme Court, that public service comes with public criticism. During the confirmation ordeal, he referred to the the advice attributed to Harry Truman that Washingtonians in need of friendship should get a dog. Future generations will almost certainly view Garland more favorably than his critics do today. For now, he’ll have to rely on history to deliver a fair appraisal of his service.
Talk to you later.
It doesn't matter what Garland did or didn't. Citizens of this country elected Trump. To blame TFG's election on Garland, Biden, or anyone else shows denial of what we, the citizens, are as a country.
Absolutely spot on. People want some plausible explanation for the outcome of the election and they want an identifiable scapegoat. Garland is an easy target because he is too principled to speak up in his own defense while still serving as AG. That should be applauded, as it is a trait that will be gone with the wind in 4 days.
People forget that a conviction would not have disqualified him. Only conviction by the Senate could have done that and blaming Garland just gives cover to the 43 Senators, most of whom admitted his guilt but hid behind a specious jurisdictional argument, then lined up to kiss his ring.
And then there is the American voter, who had access to all the facts and still reelected him.
We have met the enemy, and he is us.