AI
Tuesday, October 11, 2022 12:12:58 PM
The Inevitable Indictment of Donald Trump
It’s clear to me that Merrick Garland will bring charges against Donald Trump. It’s just a matter of when.
By Franklin Foer
October 11, 2022, 6 AM ET
Attorney General Merrick Garland welcomes new U.S. citizens on Ellis Island in celebration of Constitution Week and Citizenship Day, on September 17, 2022. (Jonno Rattman for The Atlantic)
As an appellate judge, Merrick Garland was known for constructing narrow decisions that achieved consensus without creating extraneous controversy. As a government attorney, he was known for his zealous adherence to the letter of the law. As a person, he is a smaller-than-life figure, a dry conversationalist, studious listener, something close to the opposite of a raconteur. As a driver, his friends say, he is maddeningly slow and almost comically fastidious.
And as the nation’s chief law-enforcement officer, he is a hyper-prudential institutionalist who would like nothing more than to restore—quietly and deliberately—the Justice Department’s reputation for probity, process, and apolitical dispassion. Which is why it is so difficult for me to imagine him delighting in the choice he now faces: whether to become the first attorney general in American history to indict a former president.
But this is what I believe he is preparing himself to do.
I have been observing Garland closely for months. I’ve talked with his closest friends and most loyal former clerks and deputies. I’ve carefully studied his record. I’ve interviewed Garland himself. And I’ve reached the conclusion that his devotion to procedure, his belief in the rule of law, and in particular his reverence for the duties, responsibilities, and traditions of the U.S. Department of Justice will cause him to make the most monumental decision an attorney general can make.
Let me be absolutely clear: Garland did not tell me he was going to indict Donald Trump. In fact, he did not tip his hand to me in any way—he is far too cautious to signal his intentions to even his closest friends, much less a reporter. Nor did his top aides suggest the announcement of an indictment. When his department says that it doesn’t discuss ongoing cases, it means it—at least in this case.
Before I lay out the reasons I believe I am correct in this assessment, I want to discuss why it is entirely possible I am not. The main reason to disbelieve the argument that Garland is preparing to indict is simple: To bring criminal charges against a former president from an opposing political party would be the ultimate test of a system that aspires to impartiality, and Garland, by disposition, is repelled by drama, and doesn’t believe the department should be subjected to unnecessary stress tests. This unprecedented act would inevitably be used to justify a cycle of reprisals, and risks turning the Justice Department into an instrument of never-ending political warfare.
And an indictment, of course, would merely be the first step—a prelude to a trial unlike any this country has ever seen. The defendant wouldn’t just be an ex-president; in all likelihood, he’d be a candidate actively campaigning to return to the White House. Fairness dictates that the system regard Trump as it does every other defendant. But doing so would lead to the impression that he’s being deliberately hamstrung—and humiliated—by his political rivals.
Garland is surely aware that this essential problem would be evident at the first hearing. If the Justice Department is intent on proving that nobody is above the law, it could impose the same constraints on Trump that it would on any criminal defendant accused of serious crimes, including limiting his travel. Such a restriction would deprive Trump of one of his most important political advantages: his ability to whip up his followers at far-flung rallies.
In any event, once the trial began, Trump would be stuck in court, likely in Florida (if he’s charged in connection with the Mar-a-Lago documents matter) or in Washington, D.C. (if he’s charged for his involvement in the events of January 6). The site of a Washington trial would be the Prettyman Courthouse, on Constitution Avenue, just a short walk from the Capitol. This fact terrified the former prosecutors and other experts I talked with about how the trial might play out. Right-wing politicians, including Trump himself, have intimated violence if he is indicted.
Trump would of course attempt to make the proceedings a carnival of grievance, a venue for broadcasting conspiracy theories about his enemies. The trial could thus supply a climactic flash point for an era of political violence. Like the Capitol on January 6, the courthouse could become a magnet for paramilitaries. With protesters and counterprotesters descending on the same locale, the occasion would tempt street warfare.
The prospect of such a spectacle fills Merrick Garland with dread, his friends say. Indeed, for much of his tenure he’s been attacked by critics who claim he lacks the fortitude to meet the moment, or to take on an adversary like Trump. Members of the House committee charged with examining the events of January 6 have publicly taunted Garland for moving tentatively when compared with their own aggressive and impeccably stage-managed hearings. Representative Adam Schiff has complained, “I think there’s a real desire on the part of the attorney general, for the most part, not to look backward.” Privately, even President Joe Biden has grumbled about the plodding pace of Garland’s investigations.
But I believe, if the evidence of wrongdoing is as convincing as it seems, he is going to indict Trump anyway.
Over the course of my reporting, I came to appreciate that the qualities that strike Garland’s critics as liabilities would make him uniquely suited to overseeing Trump’s prosecution. The fact that he is strangely out of step with the times—that he is one of the few Americans in public life who don’t channel or perform political anger—equips him to craft the strongest, most fair-minded case, a case that a neutral observer would regard as legitimate.
United States v. Donald Trump would be about more than punishing crimes—whether inciting an insurrection, scheming to undermine an election, or absconding with classified documents. An indictment would be a signal to Trump, as well as to would-be imitators, that no one is above the law. This is the principle that has animated Garland’s career, which began as the Justice Department was attempting to reassert its independence, and legitimacy, after the ugly meddling of the Nixon years. If Garland has at times seemed daunted by the historic nature of the moment, that is at least in part because he appreciates how closely his next move will be studied, and the role it will play in heading off—or not—the next catastrophe.
I have also come to see that the Garland of 2022 is not the same man who was sworn into office as attorney general in March of the previous year. At the age of 69, his temperament is firmly fixed, but a year and a half on the job has transformed him.
It was just a few months ago that I saw a different version of the attorney general begin to emerge. While his investigation of January 6 continued at its slow pace, his sparring with Trump over the documents at Mar-a-Lago escalated quickly. The former president is no longer a figure on television, but his adversary in court. Garland approached him with an aggression that suggested he was prepared to do the very thing that critics said he didn’t have the guts to do.
The Merrick Garland who took over the Justice Department may have hoped he could restore its reputation without confronting Trump, or dragging him to a courtroom. But the nation has changed in the intervening months, and so has he.
Before he became attorney general, Merrick Garland’s life was defined by a job he has never held.
Twice, Barack Obama considered lifting him from the D.C. Circuit onto the Supreme Court, and twice Obama passed him over. After those failed attempts to move beyond the short list, Garland seemed to age out of the possibility, past the point where the actuarial tables suggest that an appointment is a worthwhile investment. Then, in 2016, Antonin Scalia died; Garland got his nomination after all—only to see it scuttled in the Senate by the obstructionist tactics of Mitch McConnell.
When Garland returned to the Court of Appeals after his nomination was blocked, he was greeted with an ovation from his colleagues. No doubt it was heartwarming, but the truth was that he was returning to an old routine after having been taunted with the job of his dreams. It would have only been human for his mind to ponder a fresh start.
[...]
https://www.theatlantic.com/politics/archive/2022/10/merrick-garland-donald-trump-investigation-indictment/671683/
It’s clear to me that Merrick Garland will bring charges against Donald Trump. It’s just a matter of when.
By Franklin Foer
October 11, 2022, 6 AM ET
Attorney General Merrick Garland welcomes new U.S. citizens on Ellis Island in celebration of Constitution Week and Citizenship Day, on September 17, 2022. (Jonno Rattman for The Atlantic)
As an appellate judge, Merrick Garland was known for constructing narrow decisions that achieved consensus without creating extraneous controversy. As a government attorney, he was known for his zealous adherence to the letter of the law. As a person, he is a smaller-than-life figure, a dry conversationalist, studious listener, something close to the opposite of a raconteur. As a driver, his friends say, he is maddeningly slow and almost comically fastidious.
And as the nation’s chief law-enforcement officer, he is a hyper-prudential institutionalist who would like nothing more than to restore—quietly and deliberately—the Justice Department’s reputation for probity, process, and apolitical dispassion. Which is why it is so difficult for me to imagine him delighting in the choice he now faces: whether to become the first attorney general in American history to indict a former president.
But this is what I believe he is preparing himself to do.
I have been observing Garland closely for months. I’ve talked with his closest friends and most loyal former clerks and deputies. I’ve carefully studied his record. I’ve interviewed Garland himself. And I’ve reached the conclusion that his devotion to procedure, his belief in the rule of law, and in particular his reverence for the duties, responsibilities, and traditions of the U.S. Department of Justice will cause him to make the most monumental decision an attorney general can make.
Let me be absolutely clear: Garland did not tell me he was going to indict Donald Trump. In fact, he did not tip his hand to me in any way—he is far too cautious to signal his intentions to even his closest friends, much less a reporter. Nor did his top aides suggest the announcement of an indictment. When his department says that it doesn’t discuss ongoing cases, it means it—at least in this case.
Before I lay out the reasons I believe I am correct in this assessment, I want to discuss why it is entirely possible I am not. The main reason to disbelieve the argument that Garland is preparing to indict is simple: To bring criminal charges against a former president from an opposing political party would be the ultimate test of a system that aspires to impartiality, and Garland, by disposition, is repelled by drama, and doesn’t believe the department should be subjected to unnecessary stress tests. This unprecedented act would inevitably be used to justify a cycle of reprisals, and risks turning the Justice Department into an instrument of never-ending political warfare.
And an indictment, of course, would merely be the first step—a prelude to a trial unlike any this country has ever seen. The defendant wouldn’t just be an ex-president; in all likelihood, he’d be a candidate actively campaigning to return to the White House. Fairness dictates that the system regard Trump as it does every other defendant. But doing so would lead to the impression that he’s being deliberately hamstrung—and humiliated—by his political rivals.
Garland is surely aware that this essential problem would be evident at the first hearing. If the Justice Department is intent on proving that nobody is above the law, it could impose the same constraints on Trump that it would on any criminal defendant accused of serious crimes, including limiting his travel. Such a restriction would deprive Trump of one of his most important political advantages: his ability to whip up his followers at far-flung rallies.
In any event, once the trial began, Trump would be stuck in court, likely in Florida (if he’s charged in connection with the Mar-a-Lago documents matter) or in Washington, D.C. (if he’s charged for his involvement in the events of January 6). The site of a Washington trial would be the Prettyman Courthouse, on Constitution Avenue, just a short walk from the Capitol. This fact terrified the former prosecutors and other experts I talked with about how the trial might play out. Right-wing politicians, including Trump himself, have intimated violence if he is indicted.
Trump would of course attempt to make the proceedings a carnival of grievance, a venue for broadcasting conspiracy theories about his enemies. The trial could thus supply a climactic flash point for an era of political violence. Like the Capitol on January 6, the courthouse could become a magnet for paramilitaries. With protesters and counterprotesters descending on the same locale, the occasion would tempt street warfare.
The prospect of such a spectacle fills Merrick Garland with dread, his friends say. Indeed, for much of his tenure he’s been attacked by critics who claim he lacks the fortitude to meet the moment, or to take on an adversary like Trump. Members of the House committee charged with examining the events of January 6 have publicly taunted Garland for moving tentatively when compared with their own aggressive and impeccably stage-managed hearings. Representative Adam Schiff has complained, “I think there’s a real desire on the part of the attorney general, for the most part, not to look backward.” Privately, even President Joe Biden has grumbled about the plodding pace of Garland’s investigations.
But I believe, if the evidence of wrongdoing is as convincing as it seems, he is going to indict Trump anyway.
Over the course of my reporting, I came to appreciate that the qualities that strike Garland’s critics as liabilities would make him uniquely suited to overseeing Trump’s prosecution. The fact that he is strangely out of step with the times—that he is one of the few Americans in public life who don’t channel or perform political anger—equips him to craft the strongest, most fair-minded case, a case that a neutral observer would regard as legitimate.
United States v. Donald Trump would be about more than punishing crimes—whether inciting an insurrection, scheming to undermine an election, or absconding with classified documents. An indictment would be a signal to Trump, as well as to would-be imitators, that no one is above the law. This is the principle that has animated Garland’s career, which began as the Justice Department was attempting to reassert its independence, and legitimacy, after the ugly meddling of the Nixon years. If Garland has at times seemed daunted by the historic nature of the moment, that is at least in part because he appreciates how closely his next move will be studied, and the role it will play in heading off—or not—the next catastrophe.
I have also come to see that the Garland of 2022 is not the same man who was sworn into office as attorney general in March of the previous year. At the age of 69, his temperament is firmly fixed, but a year and a half on the job has transformed him.
It was just a few months ago that I saw a different version of the attorney general begin to emerge. While his investigation of January 6 continued at its slow pace, his sparring with Trump over the documents at Mar-a-Lago escalated quickly. The former president is no longer a figure on television, but his adversary in court. Garland approached him with an aggression that suggested he was prepared to do the very thing that critics said he didn’t have the guts to do.
The Merrick Garland who took over the Justice Department may have hoped he could restore its reputation without confronting Trump, or dragging him to a courtroom. But the nation has changed in the intervening months, and so has he.
Before he became attorney general, Merrick Garland’s life was defined by a job he has never held.
Twice, Barack Obama considered lifting him from the D.C. Circuit onto the Supreme Court, and twice Obama passed him over. After those failed attempts to move beyond the short list, Garland seemed to age out of the possibility, past the point where the actuarial tables suggest that an appointment is a worthwhile investment. Then, in 2016, Antonin Scalia died; Garland got his nomination after all—only to see it scuttled in the Senate by the obstructionist tactics of Mitch McConnell.
When Garland returned to the Court of Appeals after his nomination was blocked, he was greeted with an ovation from his colleagues. No doubt it was heartwarming, but the truth was that he was returning to an old routine after having been taunted with the job of his dreams. It would have only been human for his mind to ponder a fresh start.
[...]
https://www.theatlantic.com/politics/archive/2022/10/merrick-garland-donald-trump-investigation-indictment/671683/
Discover What Traders Are Watching
Explore small cap ideas before they hit the headlines.
