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Lay off Merrick Garland
It has become something of a sport in certain media circles and elsewhere to complain, sometimes vociferously and repeatedly, that the Attorney General of the United States has been too plodding and reticent in the way he and his department have gone about the business of investigating Donald Trump for the crimes he committed while in office and afterwards, specifically, his attempts to overturn the results of the election he lost in 2020, and his removal from the White House and subsequent mishandling of thousands of government documents, hundreds of them classified, when he stored them in insecure facilities at his home and office at Mar a Lago in Palm Beach, Florida.
Critics of Garland are fond of pointing out that two years have passed since Trump’s meetings and phone calls with lawyers and other aides making plans to appoint fake slates of electors from battleground states he lost, and use the fake electors to stall or even stop the counting and certification of electoral ballots on January 6, 2021. More than a few articles I have read complain that Garland did not pick up the torch passed by Robert Mueller in his report that listed numerous instances of Trump apparently obstructing justice and/or congressional investigations of the attempt by Russia to influence the 2020 election and/or aid Trump’s campaign. In Mueller’s report, he held that Department of Justice rules prevented him from bringing charges against a sitting president. Well, these writers want to know, what about now? Trump is no longer president. Why couldn’t the DOJ charge him with obstructing justice in the ways that Mueller found he did back in 2019?
Merrick Garland has empaneled two grand juries in Washington, D.C., to investigate Trump’s possible criminal behavior in trying to overturn the presidential election, his incitement of the crowd that assaulted the Capitol on January 6, and his apparent theft of government documents when he left office, as well as his 18-month-long obstruction of attempts by the National Archives and the DOJ to get him to return the documents to the government, where they belonged. Reports in the press say that the DOJ – that would be Merrick Garland’s DOJ – has put hundreds of witnesses before both grand juries and questioned them about Trump’s alleged crimes. An entire team of DOJ attorneys, operating under the supervision of the U.S. Attorney for the District of Columbia, have been working non-stop to assemble documentary evidence, video evidence, recordings, and testimony of witnesses about Trump’s various crimes.
During this time, Trump has done everything in his power to stop or delay the DOJ investigation. He had one of his lawyers lie on an affidavit certifying that he had turned over all the classified documents sought by a DOJ subpoena. The DOJ was forced to go into federal court and get a search warrant, which they used to search Mar a Lago, where they turned up 103 folders of classified documents Trump had failed to turn over pursuant to the subpoena. Getting the search warrant, carrying out the search, and going through all 22,000 pages of government documents that Trump held at Mar a Lago has taken time.
Trump then sued in federal court in Florida and got a judge, conveniently one he had appointed to the federal bench, to order a special master to review all 22,000 of the documents Trump took from the White House for possible protection under either attorney-client or executive privilege. That process, begun in September, is still ongoing and has caused the Department of Justice to file two appeals with the 11th Circuit Court of Appeals seeking access to the documents the FBI seized from Mar a Lago so they can be used as evidence in their criminal investigation of Donald Trump. The DOJ won its first appeal and was granted the right to use the 103 folders of classified documents in its investigation. Oral arguments will be held next Tuesday in Atlanta on the DOJ’s second appeal that seeks access to the unclassified documents for use in its criminal investigation of Trump. All of this has taken several months, and the special master process is still not finished.
The DOJ has faced repeated attempts by witnesses it has subpoenaed for its grand juries to avoid testifying. Trump has had his SuperPAC fund lawsuits by witnesses seeking to avoid testifying before the grand jury. The DOJ has had to grant immunity to at least one witness to force him to testify truthfully about several matters under investigation, including the documents investigation and the 1/6 investigation.
Now Trump has filed the necessary paperwork to become a candidate for the presidency in 2024 in an obvious attempt to make it more difficult for the Department of Justice to carry out its investigations of him. He has already started yapping about a “witch hunt” and comparing it to the Mueller investigation. He has his minions out in droves echoing his complaints. Marjorie Taylor Greene has called for defunding the DOJ investigation of Trump and the special counsel Garland appointed yesterday to lead the investigation. She even went so far as to recently call for the impeachment of Merrick Garland.
Which brings up the most recent thing Garland has done in his investigation of Trump: yesterday he appointed former U.S. attorney and war crimes investigator Jack Smith as special counsel and put him in charge of both branches of the criminal investigation of Trump. The Right has raised a deafening scream in unison, of course, which should give you some idea of how frightened they, and Trump, are of this appointment. They should be. Special Counsel Smith will bring a fresh set of eyes to an investigation that has accumulated thousands of pages of evidence and thousands of pages of witness testimony.
Investigations like the one being carried out by the DOJ against Trump are enormously complicated and taxing. There is a tendency of prosecutors to get bogged down in the details of what they are investigating. If Special Counsel Smith is anything like he is being described as by legal experts over the last 24 hours, he will get rapidly up to speed with the ongoing investigation and will have the opportunity to cut through some of the fog that has accumulated over the months and make decisions that might narrow its focus and enable prosecutors to reach conclusions and begin to bring indictments.
Prosecuting a former president of the United States has never been done before. The new special counsel cannot just look at evidence and bring charges. He must bring charges that can be proved in a court of law and will convince a jury, some of whom may have voted for Trump, to convict him on charges that carry a decade or more of jail time as punishment if he is convicted. That is not an easy task.
Plodding and painstaking and reticent are good things for a prosecutor to be. Merrick Garland has said repeatedly over the last two years that no one in this country is above the law. I don’t think he has qualm one about charging Donald Trump for his crimes, but it’s not up to him whether Trump goes to jail. That will be up to a jury of Trump’s peers, an unknown if there ever was one.
Stay tuned. Merrick Garland is on the case, and so am I.
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