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Attorney General Merrick Garland Should Bring the Hammer of Justice Down on Trump — Or Step Aside and Let Biden Appoint Someone Who Will


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Attorney General Merrick Garland speaks at the FBI: NAJ screen shot

By Glynn Wilson – 

WASHINGTON, D.C. — As the House Republicans get ready to launch a partisan, political investigation of the Federal Bureau of Investigation and the United States Department of Justice, many Democrats and liberal commentators also find themselves wondering what in the hell is going on with Attorney General Merrick Garland.

When Garland quickly announced the appointment of a Trump appointed special prosecutor to investigate President Joe Biden’s return of classified documents — which every qualified legal analyst says is not even close to comparable to Trump’s taking of top secret documents, lying about possessing them and refusing to turn them over — Keith Olbermann went ballistic, calling on Garland to step down or be fired.

You may remember Olbermann from his show “Countdown” on MSNBC back in the Bush years. He was the toughest commentator on television criticizing Bush’s handling of the war in Iraq and the economy, which nearly resulted in a global economic collapse.

He was canned by MSNBC not long after Obama was sworn in, right after the telecom giant Comcast took over NBC.

Related: Olbermann Signs Off MSNBC for Good After Comcast-NBC Merger Approved

These days, Olbermann’s show is online and his views are posted and followed by many on Twitter.

“Garland has to go – and NOT because he appointed a Special Counsel; that’ll probably work to Biden’s advantage. We have to have somebody there to protect the Trump Investigation and Merrick Garland has again shown he’s not smart enough to be trusted with doing it,” Olbermann said.

“Garland has to go because of a question nobody’s asking: Who illegally leaked this confidential investigation to CBS News? How could it leak barely four days after the internal recommendation to name a Counsel? How could Garland have handed this case requiring ultimate secrecy to a Trump appointee? How could he NOW hand the case over to a DIFFERENT Trump appointee who used to clerk for Justice Rehnquist and has his own page as a “contributing expert” to The Federalist Society?

“We’ve all long had reasons to question Merrick Garland’s intelligence and savviness,” he added, “but these are the last straws. He’s just no damn good at this, and right now we have no margin for error for a guy whose Department of Justice is a sieve, and doesn’t understand the realities of the Trump cult.”

Garland is Weak

I’ve been skeptical of Garland all along, and reported more than once that former Senator Doug Jones of Alabama would have been a better choice for Biden to pick. But the Ivy League, Washington, D.C. insiders won, and the play-it-safe Garland got the gig.

Now it appears obvious that Garland is more concerned about protecting a mythical view of a so-called “blind” objective justice system than he is in saving democracy for future generations. It’s not even clear that he understands the myth.

Lady Justice2 1 1200x889 - Attorney General Merrick Garland Should Bring the Hammer of Justice Down on Trump -- Or Step Aside and Let Biden Appoint Someone Who Will

The idea of Lady Justice is based on the Greek goddess Themis − honored as “clear-sighted” but not blind − and the Roman goddess Justicia − honored as representing the virtue of justice. She is not blind, but sometimes depicted as blindfolded, because justice should be unbiased and not be based on a person’s appearance or other outside influences, including political influences: NAJ screen shot

I put these questions to New York attorney Scott Horton.

He and I worked on the political prosecution of former Alabama Governor Don Siegelman of Alabama for five years, only to see a Republican federal judge send Siegelman to prison for seven years.

“It turns out there is a reason why Merrick Garland was Orrin Hatch’s favorite pick for a senior judiciary slot back when the Utah Republican ran the Senate Judiciary Committee,” Horton said. “He will do almost anything, including compromise long-established DOJ practices, to avoid offending Republicans.”

Not that he gets any credit for this among Republicans of the MAGA era, he said.

“After being appointed attorney general, he essentially abandoned any serious probe into the role of the Trump White House on Jan. 6, only picking it up again after public hearings by the Jan. 6 committee embarrassed the DOJ by demonstrating the harm its inaction had caused,” Horton continued.

“In this regard, Garland’s conduct should be compared directly with that of German prosecutors dealing with the Reichsbürger coup plan and Peruvian prosecutors dealing with Pedro Castillo’s attempted coup: both dealt instantly and effectively with the people at the top of the coup plot, arrested them and putting them under investigatory detention while criminal charges were being prepared. Both the Peruvians and Germans recognized that instant action against the coup plotters was essential to defend the constitution.

“Two years after Jan. 6, Garland has still done nothing,” he said. “Similarly, Garland’s decision to appoint a Federalist Society member as special counsel to look into supposed mishandling of classified documents by Joe Biden was done in clear-cut violation of the rules for appointment of a special counsel, and was designed to appease unjustified demands by Republicans. It sums up Garland’s entire feckless tenure as attorney general. He will go down in history as a timid or weak attorney general always bending over backwards to appease Republicans who cannot in fact be appeased, and thus always putting politics over the disinterested demands of justice.”

The proper word to describe Merrick Garland, he said, is a “Putz.”

Doug Jones would not comment for this article.

But Don Siegelman did.

“Clearly Donald Trump is getting special treatment that no other American would have been given,” he said. “Equal Justice? The lady of liberty blindfolded? The myth of an impartial judicial system is exposed.”

The truth about the Department of Justice came to my attention all the way back in the 1980s, when the Reagan Justice Department spent years and millions investigating the Black mayor of Birmingham, Richard Arrington, and never found enough evidence of criminality to bring an indictment, yet spent nothing and no time investigating the White male Republican Guy Hunt, who was eventually impeached and removed from office for his malfeasance by a state prosecutor.

My work on those cases was quoted in a book chapter back then by former New York Times reporter David Burnham.

Secret Deals, Political Fixes and Other Misadventures of the U.S. Department of Justice

Meanwhile, Politico recently published a puff piece on Garland written by Ankush Khardori, an attorney and former federal prosecutor in the Justice Department, a Politico magazine contributing writer.

Here are a few notable sections worth citing.

According to Jamie Gorelick, who has known Garland since college, brought him in to work for the Clinton Justice Department and assigned him to the most important and politically sensitive case of that era — the bombing of a federal building in Oklahoma City — Garland supposedly knows the Trump investigation “is the most consequential investigation that the DOJ has ever undertaken … and certainly in its breadth, it is the biggest ever.”

Still, the decision that looms ahead for Garland — whether to criminally charge Trump — poses a new sort of challenge, he said, “one that implicates an array of novel and weighty questions that are both legal and prudential in nature.”

If Garland eventually authorizes prosecutors to indict Trump, “he will set the country on an unprecedented path, with no clear answer to how it might end and considerable political risks in every possible direction, whether the effort results in a conviction or not.”

If Trump manages to avoid prosecution, “the political fallout might be less overt but it would be no less dramatic, since many of the people who believe Trump has committed serious federal crimes will probably not be persuaded by whatever rationale emerges to justify the decision.”

He points out that the vibe emanating from the Biden administration early on was distinctly reminiscent of the incoming Obama administration’s handling of the illegal torture program created during the George W. Bush years — a time when Obama famously said that “we need to look forward as opposed to looking backwards.”

Many of us at the time thought Obama had made a deal with Bush not to investigate him, in exchange for something, maybe Bush’s support going forward against the far right. The Bush’s, after all, including Bush’s brain Karl Rove, appear very mainstream these days compared to Trump’s MAGA Republicans.

On the 2020 campaign trail, Biden struck a similar tone — at one point offering that he would not interfere with the Justice Department’s work if elected but that it would be “a very, very unusual thing and probably not very — how can I say it? — good for democracy to be talking about prosecuting former presidents.”

Soon after the election, when Trump was just beginning his months-long effort to prevent Biden from taking office, Biden’s aides told reporters that he did not “want his presidency to be consumed by investigations of his predecessor” and that he worried that “investigations would further divide a country he is trying to unite.”

But after the House Select Committee put together a series of prime time hearings focusing on Trump’s efforts to lead a seditious conspiracy and incite a violent insurrection to halt the peaceful transfer of power and overturn the 2020 election results, the attitude changed.

President Biden himself began to confide to his inner circle that he believed Trump was a threat to democracy and should be prosecuted. In comments that must have gotten Garland’s attention, it was reported that Biden said privately that he wanted Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.

The pressure mounted for something to be done in July, when committee Vice Chair Liz Cheney went on ABC’s “This Week” and issued a clear call for Garland and the Justice Department not to wait, and to act.

Cheney Says Trump Faces ‘Multiple’ Criminal Referrals, and Hints the Justice Department Should Not Wait

On the campaign trail in September, Biden came out and said what he felt in a special address in Constitution Hall in Philadelphia.

President Biden Goes on the Offensive Against Violent Extremism

But Garland wanted to wait until after the midterms elections, careful again not to appear that justice and politics were in bed together. He did nothing right after the election either, leaving the door wide open for Trump to announce his candidacy for president in November.

At that point Garland felt he had no choice but to appoint a special counsel to handle the Trump investigations to ensure the “independence and accountability” of the department’s investigations.

He may live to regret that decision after the new head of the House Judiciary Committee gets through with him. Imagine if Garland had investigated all the Republican members of Congress who were complicit in Trump’s coup attempt, who voted against accepting the Electoral College results on Jan. 6, who went all out on the campaign trail to deny the accurate outcome of the 2020 election?

Jim Jordon might well be in a jail cell right now, instead of head of the House Judiciary Committee, using his political and media platform to bash Garland, the FBI and the Department of Justice for the way Trump was treated. Trump could have been indicated and tried and jailed by now, and this would not be an issue or a story.


Those who know Garland say he is not affirmatively looking to build a criminal case against Trump for the sake of prosecuting “the man.” One acquaintance of Garland’s recalled that, in a conversation in the summer of 2021, several months after he had taken office, Garland acknowledged that there were many Democrats who wanted him to take swift and decisive action against Trump and his administration.

“He was very aware that there were people on the left who wanted to string up Trump on the gallows,” the person recalled.

But as Bellin put it before Smith’s appointment, “What he wouldn’t be doing is saying, ‘I’m gonna get Trump. Let’s have a task force to get Trump.’ That’s not the kind of person he is.”

“He wouldn’t hesitate if someone said they had a solid case,” Bellin added, “but I don’t think he was thinking this is someone he had to stop to save the republic.”

Well, if Garland doesn’t understand how his political weakness leads to the lack of justice now, he may never learn. But it is clear from here that he has let the country down.

In a speech last January, Garland insisted that the Justice Department “remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy. We will follow the facts wherever they lead.”

Garland is also fond of invoking “the rule of law” in his public remarks, often offering some variation on a formulation that he first used when Biden announced his nomination.

“The essence of the rule of law is that like cases are treated alike,” he said at the time. “That there not be one rule for Democrats, and another for Republicans, one rule for friends, another for foes, one rule for the powerful, another for the powerless.”

Garland’s invocation of the rule of law, however, can at times sound more like sloganeering than an actual philosophy of law.

And he has yet to grapple with the key question: How can you have a policy at the Justice Department to not indict a sitting president and even a former president and at the same time a value that “no one is above the law.”

It’s a contradiction in terms.

Since Garland is so intent on avoiding politics, and trying to render this mythical blind justice, he must be ignorant of what Scott Horton told me for this story and what every educated political commentator seems to know and Garland seems to be oblivious to — the reality of how the political world actually works.

“The ‘Leninist’ Steve Bannon views the DOJ merely as a political tool to be used to attack enemies and defend friends,” Horton said, for example. “This was an established view in the Southern GOP for a couple of decades. With Trump it became GOP dogma in the DOJ, and William P. Barr was a good example of this.

“Garland seems naively to think that he can win the GOP back to ‘objective justice’ by leaning over backwards in their favor,” Horton said. “But that’s both naïve and actually undermines the notion of no politics and blind justice.”

Selfish narcissists who live by a win-at-all-costs approach will never surrender to altruistic Neo-liberals who believe you can govern by some Jesus-inspired example. At some point it will be required for someone with cajones to finally bring the goddamned hammer down on these corrupt sons-of-bitches. If Garland doesn’t have the stomach to do this job, he should step aside and let President Biden find someone to appoint who can get it done.

Many Democrats are loving the appointment of Jack Smith as a special prosecutor. We will see what he comes up with. But it will still be up to the Attorney General to make the final call. From the hand he’s shown so far, it appears doubtful that Garland has the balls to act.


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