Garland Under Pressure to Indict Trump
Democrats want the DOJ to act more quickly.
AP (“Jan. 6 panel puts Garland in ‘precarious’ spot, ups pressure“):
Lawmakers investigating the Jan. 6 attack on the Capitol are increasingly going public with critical statements, court filings and more to deliver a blunt message to Attorney General Merrick Garland and the Department of Justice.
President Donald Trump and his allies likely committed crimes, they say. And it’s up to you to do something about it.
“Attorney General Garland, do your job so we can do ours,” prodded Rep. Elaine Luria of Virginia.
“We are upholding our responsibility. The Department of Justice must do the same,” echoed Rep. Adam Schiff, D-Calif.
Their rhetoric, focused this week on two contempt of Congress referrals approved by the committee, is just the latest example of the pressure campaign the lawmakers are waging. It reflects a stark reality: While they can investigate Jan. 6 and issue subpoenas to gather information, only the Justice Department can bring criminal charges.
Committee members see the case they are building against Trump and his allies as a once-in-a-generation circumstance. If it’s not fully prosecuted, they say, it could set a dangerous precedent that threatens the foundations of American democracy.
The lawmakers seem nearly certain to send a criminal referral to the Justice Department once their work is through.
It all puts Garland, who has spent his tenure trying to shield the Justice Department from political pressure, in a precarious spot. Any criminal charges related to Jan. 6 would trigger a firestorm, thrusting prosecutors back into the partisan crossfire that proved so damaging during the Trump-Russia influence investigation and an email probe of Hillary Clinton.
I’m almost certain Trump committed multiple crimes during his tenure as President even apart from the attempt to steal the 2020 election. I’m almost as sure that there’s enough evidence at this point that a DC grand jury would indict. I’m much, much less confident that the case is strong enough to secure a conviction and, in this case, an acquittal would very much be taken as exoneration.
Beyond that, lawmakers putting pressure on the Attorney General here is just a bad look. While indicting a former President—let alone the guy Garland’s boss defeated to get the job and his most likely opponent two years from now—is inherently political, the AG seeming to succumb to partisan appeals to use the criminal justice system against a political opponent is highly problematic.
And it’s not like Garland is doing nothing:
Garland has given no public indication about whether prosecutors might be considering a case against the former president. He has, though, vowed to hold accountable “all January 6th perpetrators, at any level” and has said that would include those who were “present that day or were otherwise criminally responsible for the assault on our democracy.”
It’s already the largest criminal prosecution in the department’s history — for rioters who entered the Capitol building on Jan. 6 as well as members of extremist groups who are accused of planning the attack. More than 750 people have been charged with federal crimes. Over 220 riot defendants have pleaded guilty, more than 100 have been sentenced and at least 90 others have trial dates.
As I’ve said from the beginning, a political investigation by House Democrats* using the subpoena power of Congress is naturally at odds with a criminal investigation. It’s very much in the interests of DOJ to keep their cards close to the vest, leveraging their information quietly to pressure potential witnesses. Politically-motivated leaks coming from the Committee undermine that effort.
Parts of the department’s investigation have overlapped with the committee’s. One example is in late January when Justice announced it had opened a probe into a fake slate of electors who falsely tried to declare Trump the winner of the 2020 election in seven swing states that Joe Biden won. Three days later, lawmakers subpoenaed more than a dozen people involved in the effort.
Another point of friction with the Justice Department is the effort to enforce subpoenas through contempt of Congress charges.
The House approved a contempt referral against former White House chief of staff Mark Meadows in December after he ceased cooperating with the Jan. 6 panel. While an earlier contempt referral against former Trump adviser Steve Bannon resulted in an indictment, the Department of Justice has been slower to decide whether to prosecute Meadows.
“The Department of Justice is entrusted with defending our Constitution,” Rep. Liz Cheney, the Republican committee chair, said at a hearing this week. “Department leadership should not apply any doctrine of immunity that might block Congress from fully uncovering and addressing the causes of the January 6 attack.”
A decision to pursue the contempt charges against Meadows would have to come from career prosecutors in the U.S. attorney’s office in Washington before senior Justice Department officials would weigh in and decide how to proceed.
Here, though, I think Garland is wrong:
Bringing a case against Meadows would be more challenging for prosecutors than the case against Bannon, in large part because Bannon wasn’t a White House official during the insurrection.
The Justice Department has long maintained that senior aides generally cannot be forced to testify if a president invokes executive privilege, as Trump has done. And bringing charges could risk undermining the longstanding principle that lets the executive branch of the government keep most discussions private.
While I go further than some on executive privilege, believing that former Presidents should indeed have the protection of executive privilege,** it shouldn’t extend to legitimate criminal inquiries. If aides to a sitting President can be compelled to testify in impeachment proceedings—and even George Washington agreed that they could—then surely those of an ex-President under investigation for multiple crimes can be forced to undergo deposition.
*And, no, the fact that two on-the-outs-from-the-party Representatives who got elected under the Republican banner, Adam Kinzinger and Liz Cheney, were appointed by Speaker Pelosi in defiance of Republican leadership doesn’t change that.
**The whole point of which is to allow frank and candid discussion. It’s bad enough that Presidents have to worry about their employees writing tell-all books. Having their private conversations subject to politically-motivated fishing expeditions would undermine their ability to do their job.