The Political Education of Merrick Garland

The DOJ's foot dragging on Trump explained (sort of)

Five years and eight months ago, President Barack Obama nominated a rather centrist jurist to be an Associate Justice on the U.S. Supreme Court to replace Justice Antonin Scalia. His name was Merrick Garland.

Although there is little doubt that the possibility of being voted down was communicated to Garland, what was not communicated to him was that he might face the reverse of the experience of Robert Bork. In 1987, Robert Bork, facing a likely defeat for what Bork termed as “his seat on the Supreme Court”, never asked to have his nomination withdrawn. Robert Bork received courtesy visits with every Senator (even those who announced they would oppose him), an opportunity to testify before the Senate Judiciary Committee, and a floor vote (he lost 58-42 against confirmation).

In the 32 days that passed between Scalia’s death and Garland’s nomination, the battle lines had already been drawn. Without a clear Republican presidential nominee, the prospect of the GOP facing Hillary in November, and having the floor votes to defeat Garland’s nomination, then Senate Majority Leader Mitch McConnell decided to pursue a “silent treatment” strategy. No votes, no hearings, and no “courtesy” visits. Its biggest advantage was that the Senate could always act on the nomination after the 2016 election to preclude a President-elect Hillary Clinton from nominating a far more liberal jurist to replace Scalia.

While Garland was no more the worse for wear, his freshman year hazing would have been somewhat less emasculating had he been able to escape to some far flung appellate court. Unfortunately, as a Judge on the DC Court of Appeals, he had a front row seat to watch legal nonsense and semantic gymnastics masquerading as justice and ethical governance.

The Mike Flynn fiasco and subsequent calls for an investigation, the recusal by Attorney Jeff Sessions in the Flynn case, the Mueller probe, the firing of FBI Jim Comey, the Ukraine scandal, Trump’s First Impeachment and non-trial trial in the Senate, the ascension of William Barr as Attorney General, the nomination of Brett Kavanaugh to the Supreme Court, and myriad of comparatively lesser criminal and ethical probes of the Trump Administration played out with Merrick Garland having a front row seat.

And the most important lesson in all of the above was how the Right engaged in the politics of delegitimization to preclude the kind of majoritarian ethical rebukes that led to downfall of Richard Nixon. If the Right’s “delegitimization” strategy been as well honed as it is today, John Dean would have been pilloried for violating attorney-client privilege, for defying Haldeman and Ehrlichman, and for perjuring himself before a grand jury and the Senate Watergate Committee. (None of the foregoing was true. But if you have your doubts, look at what happened to Mark Felt when it was revealed he was “Deep Throat”)

Many on the Left have been frustrated by Garland’s hesitancy to go after Trump and his co-conspirators without considering three salient points.

First, U.S. Attorneys never prosecute without a ring-fenced case. The conviction rate in federal court is astronomically high (99.6%) . That does not come through gamesmanship with discovery or legal bullying (which happens frequently in state courts), it comes from making indictments without holes and cases that compel defense attorneys to counsel their clients to plea. Federal prosecutors often seem to lackadaisical or inordinately slow in pursuing cases. In truth, federal rules more or less require a completed investigation precede indictments and that process frustrates those enamored by the Hollywood version of the legal system (i.e. swift, certain, and capable of being resolved in an hour or so).

Second, this past Summer revelations that people within the Department of Justice had spied upon Democrats in Congress during the Trump Administration. When Garland took office, he knew he needed to weed out Trumpists within his department and those revelations made that objective all the more difficult. The Justice Department, more than any part of the President’s Cabinet, has the most political appointee holdovers (by necessity as they are often involved in ongoing prosecutions) and transfers into civil service positions (odiously termed “burrowing in”). Garland must deal with a number of Trump loyalists at the Justice Department who, without some level of criminal or ethical misconduct, are likely going to be difficult to simply “cardboard box” i.e. fire.

Third, one does not have to guess at what an indictment of Trump will produce. A cacophony of “political revenge”, conspiratorial nonsense, and the politics of delegitimization taking the foreground. Without a ring-fenced case, a clean procedural prosecution (to avoid accusations of contrived misconduct by those burrowed in Trumpist attorneys), and a level of messaging that sells an apolitical prosecution to that 5-10% of the population that flits between Red and Blue when they vote, any prosecution of Trump et al. will be a disaster.

Those facts aside, neither time nor politics will be on Garland’s side for much longer.

Statutes of limitations and concomitant investigations in New York and Georgia will likely force his hand eventually, although I have a sinking feeling that justice for Trump is being delayed by a juvenile game of “No, you go first” amid this trio of potential prosecutors.

And a bit of political realism, Garland is going to take flack from the Right regardless. Garland’s messaging in a case against Trump and his loyalists is a simple one: “When federal laws are broken: the Department of Justice prosecutes.” Indictments lay out crimes, evidence, and statutes rather succinctly. Neither the bureaucratic process nor the political noise changes that dynamic much.

The only question one should being ask of Merrick Garland is whether he is a jaded student with a case of senioritis or hard nosed graduate prepared for the real world.