Merrick Garland misunderstood

or do you think the DA actually tries cases?

Eight months ago, I wrote that Merrick Garland needed a ring-fenced case, to resolve “burrowing in” issues by pro-Trump political appointees, and an effective message to beat right-wing blowback.¹

Eight months later, Democrats and the Political Left are in a dither over the lack of action. Lawfare Blog had a point counterpoint featuring slightly left of Center Benjamin Wittes of the Brookings Institution counselling patience² on the side of Merrick Garland and Quinta Juresic (also of Brookings) and Natalie Orpett (of Lawfare) taking the fairly millennial and much further left of Center viewpoint of “what the Hell are you waiting for?”.³

To be frank, pragmatists like Wittes and idealists like Juresic and Orpett take on the methodicalness of Merrick Garland is hardly suprising. But it is not terribly realist.

A few thoughts.

The ring-fenced case is not yet before us. It looks like it is, but there are enough evidentiary gaps that even the greenest federal prosecutor wouldn’t touch it. But that’s not to say some cases are not makeable now. Witness tampering, obstruction of justice, election meddling, administrative interference, et al. all wait to be attached to an indictment for Insuurection, Conspiracy thereto, and Incitement to Riot.

Merrick’s messaging is the reason for most the anxiety over the DOJ’s perceived lack of prosecutorial zeal. Messaging and a few poorly times events.

The Garland Memo on investigating presidential candidates. It was written in May 2022. It’s basically a reiteration of a memo written by William Barr in February 2020⁴. Idealists have gone nuts over this. While poorly timed, it’s more about William Barr covering Trump’s ass post First Impeachment than anything else.

The DOJ Request for January 6th Committee Transcripts - This one⁵ bothers everyone to a degree even realists. Of course, the Department of Justice has been grinding through hundreds (over 800 at last count) of cases involving the actual rioters at the Capitol. Avoiding duplicative work (reinterviewing the previously interviewd) and subpoena deja vu is not the best excuse for wanting the January 6th Committee’s work, but it is a reasonable request to make for a committee that’s already hinted at making criminal referrals against Trump.⁶

Merrick Garland is being viewed incorrectly. He is not Trump or anyone else’s prosecutor. He’s an administrator, It’s his job to supervise those who go after Trump.

That said Merrick’s messaging of “we do not discuss ongoing investigations and cases” is institutionalist nonsense that everyone sees through. Garland needs to grimace and then grouse, “When federal laws are broken: the Department of Justice prosecutes.” It’s a better message.

That said, if Merrick Garland is trying to time an indictment of Trump; he needs to rethink that notion.

1. The Political Education of Merrick Garland

2. https://www.lawfareblog.com/defense-justice-department

3. https://www.lawfareblog.com/justice-department-meeting-moment

4. https://www.salon.com/2022/07/19/secret-garland-memo-to-doj-originated-with-bill-barr_partner/

5. https://www.politico.com/news/2022/05/17/justice-department-requests-transcripts-from-jan-6-committee-00033236

6. https://www.reuters.com/world/us/cheney-jan-6-panel-could-make-multiple-criminal-referrals-trump-2022-07-03/