Merrick Garland misses the target

Almost 1,000 people have been charged in connection with the Jan. 6, 2021, Capitol insurrection; criminal and civil investigations are underway in Georgia and New York on allegations of election tampering and tax fraud; sitting U.S. senators, senior Trump White House aides and Trump Organization officials are being compelled to testify by the Department of Justice, state prosecutors and the Supreme Court; and an ongoing FBI investigation has concluded that top secret and compartmentalized intelligence papers were removed from the White House to Mar-a-Lago.

But on Nov. 18, by appointing a special counsel to take over the Jan. 6 and Mar-a-Lago investigations, Attorney General Merrick Garland effectively passed on his responsibility to decide whether the person at the center of all of these investigations, former President Trump, should be prosecuted. Garland’s nomination of a special counsel was said to be necessary because the “Department of Justice has long recognized that in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution.” 

In plain language: Trump’s announcement of a 2024 presidential campaign apparently justified the decision to protect the Department of Justice (DOJ) from accusations of politicization by appointing an independent counsel. The rationale is scarcely credible in today’s polarized climate. Sen. Ted Cruz (R-Texas) already has launched the first of what is sure to be a chorus of criticisms that the DOJ is, in fact, being weaponized.

No amount of sophistry — what exactly are “extraordinary circumstances” and who decides the “public interest”? — or highlighting special counsel Jack Smith’s merits can mask Garland’s abdication of responsibility. Garland has no difficulty throwing the proverbial book at Oath Keepers or pressuring lower-level employees at Trump’s Mar-a-Lago resort to cooperate; but the person who is said to have inspired them, who participated in calls to overturn votes at state level, and who promoted the rejection of the legitimacy of an American presidential election — well, charging him is clearly a different question.  

It really is hard to underestimate the potentially negative impact that Garland’s decision could have on the timeline of concluding the multiple investigations into Trump’s actions. The DOJ would not charge him, if warranted, until a special counsel completes a separate investigation — which could be years from now, potentially after Trump’s third run at the presidency, and when there is a new attorney general who reviews the findings.

Garland’s and Smith’s assurances that a special counsel will not slow the investigations and that they are well advanced may be the case, but these assurances are belied by the experience of previous multi-year special counsel investigations, from Iran-Contra to Whitewater to Russian interference in the 2016 election. There are complications related to the Trump investigation, not least his status as a former president. The incoming Republican-led House of Representatives may launch

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