[The AG trying to restore norms, but so far he’s let the people
who shattered them get away without consequence.]
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IF MERRICK GARLAND DOESN’T CHARGE TRUMP AND HIS COUP PLOTTERS, OUR
DEMOCRACY IS TOAST  
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David Rothkopf
November 27, 2021
The Daily Beast
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_ The AG trying to restore norms, but so far he’s let the people
who shattered them get away without consequence. _

, Kristen Hazzard/The Daily Beast/Getty

 

The Department of Justice
[[link removed]] announced
this week that it would crack down on airline passengers who throw
tantrums
[[link removed]].
Now, if Attorney General Merrick Garland
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only get around to doing something about people who plot the
overthrow of our government
[[link removed]] and
a former president who's serially obstructed justice
[[link removed]] and abused
power
[[link removed]] we
might be getting someplace.

Not that in-flight safety isn’t important. It is. Just like it’s
important to arrest and prosecute the moron Trumpist foot soldiers who
stormed the Capitol on Jan. 6. All that is important. But it is not
enough.

President Joe Biden may get everything else right
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if his administration—starting with the Department of Justice—gets
wrong its response to the threats to our democracy posed by Trump and
the GOP, nothing else they do may matter.

A widely respected jurist, Garland was picked by Biden to depoliticize
the DoJ and end the abuses of its power we saw under Trump appointees
Jeff Sessions and Bill Barr. Certainly, he has made some strides in
that direction. But if the result of his de-politicization is
tiptoeing around the egregious serial wrongdoing of the leaders of the
Republican Party, then his efforts will have exactly the opposite of
the intended effect. By failing to hold Trump and Co. accountable,
Garland will set the stage for them to continue unabated their efforts
to turn the U.S. into a one-party state in which only Republicans can
win elections and any tactics they may use to hold on to power will
have been effectively validated by the inaction of Garland and his
DOJ.

Garland has, on more than one occasion, already taken steps that have
actually empowered or emboldened those who currently pose a threat to
our system. A particularly egregious example of this was Garland’s
decision to take the side of Trump by arguing that the former
president was acting in his official capacity when he lied and defamed
journalist E. Jean Carroll following her accusation that Trump had
raped her long before he was elected president.

Garland’s position was defended by allies who argued that he was an
“institutionalist” who felt it was his duty to defend presidential
prerogatives.But what he was actually doing was defending the abuse of
power and, however inadvertently, demonstrating that our institutions
may face no threat quite so grave as that posed by self-anointed
“institutionalists.”

Recently, Garland has won praise for having had the Justice Department
enforce contempt of Congress charges against disheveled Trump crony
Stephen Bannon. However, the DOJ decision to bring charges against
Bannon took weeks when it should have taken minutes. The case was
clear-cut. Bannon ignored a legitimate Congressional subpoena,
claiming rights he did not have.

Merrick Garland Official portrait, 2021

I have been counseled by wise and respected friends, like former U.S.
Attorney and Deputy Assistant Attorney General Harry Litman, that we
should be grateful for the Bannon decision because it will empower the
Congress to do its job. I understand the view. But this Congressional
investigation has a clock running on it. If the GOP retakes the House
next November, as many are currently predicting, the investigation
into the Jan. 6 coup attempt will be instantly ended by the
Republicans. So for all those called by the committee, it may appear
that all they have to do to avoid suffering any consequences for their
action is to stall just as Bannon is doing. In this case, justice
delayed will most certainly be justice denied.

More troubling to me though is that the only reason we are hearing of
any case being brought against Bannon as a senior coup plotter (or
upper middle management in any case) is because Congress is
investigating the events of Jan. 6. We have not heard a peep out of
the Department of Justice about prosecuting those responsible for
inciting, planning or funding the effort to undo the lawful transfer
of presidential power to the man the American people elected, Joe
Biden.

We also have not heard a peep out of them in terms of prosecuting the
dozen instances of clear obstruction of justice that Special Counsel
Robert Mueller’s report cited against Trump. We have seen that
Garland is letting the highly politicized investigation of special
prosecutor John Durham into the conduct of the Trump-Russia
investigation continue (by continuing its funding). We therefore have
the real prospect that those who sought to look into the Trump-Russia
ties that both Mueller and Congressional investigations have
demonstrated were real, unprecedented and dangerous might be
prosecuted while those who actively sought the help of a foreign enemy
to win an election will not be.

Other wise and experienced legal observers for whom I have massive
respect argue that further patience is in order, that we don’t know
what Garland is doing behind the scenes and we should give him more
time. One such person is former U.S. attorney Barbara McQuade. She
said to me, “While I understand the frustration that DOJ has not yet
charged higher-level defendants in the Jan. 6 attack, I think that it
is not yet time to be angry with AG Garland for inaction. We don't
know what investigative steps may be occurring because of the grand
jury secrecy requirement. Robert Mueller spent almost two years on his
investigation. I would expect this investigation to take at least that
long.”

A.G. Gill, another analyst of these matters for whom I have great
respect, creator and host of the Daily Beans and Mueller She Wrote
podcasts, argues caution for another reason. She feels there
are efforts afoot to turn public opinion against Garland and DOJ 
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a way of weakening and discrediting these institutions.

And yet Garland’s behavior to date has left me apprehensive.
Conversations I have had with folks inside DOJ have not eased those
concerns. There, frustration with Garland begins with his management
style (which insiders liken to that of a judge running his chambers in
which his office is a kind of bubble apart from the department and
staffed by a small team akin to the clerks he had when he was in the
judiciary).

It extends to concerns that he will err too far in the name of caution
and a desire not to be perceived as political. This too is a hold-over
from his court days and ignores that A) he is a political appointee,
B) the issues he is dealing with are hyper-politicized and c) there is
no way to prosecute politicians for crimes committed in the name of
partisanship without appearing political.

But, still, I’ll admit it. I hear our judicial clock ticking as
loudly as Mona Lisa Vito’s biological clock
[[link removed]]. Given that the stakes
are so high and seeing some of the decisions Garland has made, I am
wondering when it is ok to become alarmed, when it is ok to become
angry.

I asked Slate senior editor and host of the “Amicus” podcast,
Dahlia Lithwick whether my burgeoning anger was acceptable, and she
responded: “I was already pretty ok about getting mad at this last
summer
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It’s possible to admire and honor all the good and vitally necessary
initiatives undertaken by Garland’s DOJ, to rejoice in his
principled efforts to reinstate the wall between the Justice
Department and the White House that Bill Barr and Donald Trump had
reduced to a picket fence, and still to be maddened by the DOJ’s
evident hope that a reckoning over Trump’s lawlessness can be left
to prosecutors in New York and the Congress.

She continued, making an important historical point: “When the Obama
Administration opted to draw a line under the Bush era torture and
rendition programs, it didn’t disappear the past, it just buried it.
And given that Trump’s election denialism is emphatically _not _in
the past -- according to a November poll from the Public Religion
Research Institute
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68 % of Republicans believe the 2020 election was ‘stolen’ from
Donald Trump. That growing number doesn’t just foment doubt in
election integrity and the rule of law, it’s being used to pass
election suppression
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subversion
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in states around the country. The ‘big lie’ that seeded Jan. 6 has
become the litmus test for GOP loyalty. I understand that the optics
of prosecuting one’s political enemies and criminalizing fiery
speech and politics is a chilling callback to the McCarthy era. But
the lies and violence and white supremacy and misogyny of Jan. 6
isn’t buried in the past, it’s metastasizing and spreading in ways
that threaten the future as well.”

Laurence Tribe

Revered legal scholar, Laurence Tribe, who taught Garland when the
attorney general was a student at Harvard Law School, suggests we give
his former student a little more time, but not an unlimited amount. He
hears the clock ticking too. Tribe said to me, “If Merrick Garland
hadn’t authorized the Bannon indictment when he did, I’d certainly
have gotten mad long since. At least with respect to someone like me,
he bought a few weeks with that indictment—but not a few months.”

“All things considered,” he continued, “I’ll be both
disappointed and angry if we find ourselves going into January 2022
without strong evidence — in a town that leaks like a sieve — that
DOJ is moving full speed ahead on holding Trump and his enablers,
facilitators, funders and co-conspirators criminally accountable for
the coup d’etat they tried to pull off and the violent insurrection
they mounted against the Capitol to delay, obstruct and, if possible,
subvert the solemn electoral proceeding there underway.”

That too, makes sense to me. What is certain is this: Time is running
out. There is every reason to fear that Trump and the coup plotters
will not be held accountable in any meaningful way. If they are not,
they will see the inaction of our justice system as a license to
continue their attacks on our system of government. What is more,
absent an effective Department of Justice effort, those attacks are
that much more likely to succeed and to be compounded by even greater
abuses. And at that point, all the institutionalists in the world will
not be able to put our Humpty Dumpty of a democracy back together
again.

_DAVID ROTHKOPF is CEO of The Rothkopf Group
[[link removed]], a media company that produces
podcasts including Deep State Radio, hosted by Rothkopf. TRG also
produces custom podcasts for clients including the United Arab
Emirates. He is also the author of many books including Running the
World: The Inside Story of the National Security Council and the
Architects of American Power
[[link removed]], Superclass, Power,
Inc., National Insecurity, Great Questions of Tomorrow,
and Traitor: A History of Betraying America from Benedict Arnold to
Donald Trump._

_THE DAILY BEAST: Independent. Irreverent. Intelligent. The Daily
Beast delivers award-winning original reporting and sharp opinion in
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Daily Beast is based in New York and is an operating business of IAC
(NASDAQ: IACI).Unlimited access to the best of the Beast. Go deeper on
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