Merrick Garland is the new Jim Comey.
The Situation on Friday imagined a firing that would trigger a crisis.
Today I want to say a few words in defense of an outgoing official of seemingly endless unpopularity: Attorney General Merrick Garland.
Eight years ago, when Trump won the presidency, lots of people lined up to blame then-FBI Director Jim Comey. I always suspected that the so-called Comey letter hadn’t made much of a difference in the 2016 election, and I take Trump’s almost-as-good performance in 2020 (when Comey kept whatever correspondence he might have written to himself), and much-better performance this year (when Trump won the popular vote despite Comey once again refraining from writing any public letters), as offering at least modest reason to suspect I was correct.
But it will always be unknowable. And people needed a fall guy. And Comey was someone everyone could blame (including Clinton), at least everyone who didn’t blame Hillary Clinton herself.
And this year, as Roger Stone might put it, it’s Garland’s turn in the barrel.
Stephen Colbert called him a “schmuck” on national television the other night:
On a more serious note, Politico ran a piece by former federal prosecutor Ankush Khardori arguing that the blame for Trump’s return to power can be laid at the Justice Department’s door:
At the root of it all are the considerable and truly historic legal missteps by the Biden administration and Attorney General Merrick Garland, as well as a series of decisions by Republicans throughout the political and legal systems in recent years that effectively bailed Trump out when the risks for him were greatest.
Khardori argues that Garland “may go down as one of the worst and most broadly unpopular attorney generals in American history—hated by the anti-Trump part of the country for failing to bring Trump to justice, and hated by the pro-Trump part of the country for pursuing Trump at all.”
Not to be outdone, Dean Obeidallah writes in U.S. News and World Report that Garland: “is already the biggest failure of an attorney general in our lifetimes.” And Jennifer Rubin, writing in the Washington Post, says that,
Attorney General Merrick Garland’s failure to swiftly and aggressively prosecute Trump will go down as one of the most devastating legal blunders in history. Had Trump been promptly indicted, appeals could have been resolved and a verdict obtained months if not years ago. Garland was the wrong man for the job at a critical time. Rather than face accountability for his crime against democracy, Trump saw himself rewarded.
Like Comey, Garland is a longtime personal friend—so maybe I’m just being defensive. But as with Comey, I find myself dissenting from what is fast becoming conventional wisdom.
The case against Garland is that he did not act fast enough, that the Justice Department should have opened an investigation against Trump immediately upon his leaving office, and that had it done so, Trump would have been convicted and we would not be where we are today.
Leaving aside the merits of whether caution or aggressiveness was the appropriate posture for the Justice Department when Trump left office, I think this is almost certainly wrong. It’s not that I think Garland’s caution was the correct posture. I am actually open to the possibility that Garland and his redoubtable deputy, Lisa Monaco, were too slow in opening what became the investigation of Trump. I am also open to the possibility that had they acted more swiftly, prosecutors may well have been able to file one of the two federal cases against Trump earlier than they did.
But color me highly skeptical that this would have made any difference.
Imagine for a moment that the Justice Department had moved at breakneck speed. What is the earliest we can reasonably hypothesize that they might have been ready to bring a case before a grand jury? The case was, in fact, filed in August 2023, a little more than two-and-a-half years after Trump departed the White House. If we take as unthinkable that the department would bring a half-baked case against a former president, you have to give at least a year. There are litigation over privileges that could not be finished quickly. There were witnesses who had to be forced to cooperate. And there were also intervening events—the Mar-a-Lago search warrant, for example, and the advent of an entirely different case against the former president over the classified documents.
All of these things take time.
But let’s imagine for a moment that the Justice Department had managed to get an indictment done and filed within a year after Trump left office, which is to say Jan. 20, 2022. This is, roughly speaking, a year and a half earlier than it managed the task in fact. This would account for both the year that the investigation appears, at least publicly, to have been a bit sluggish getting off the ground and, let’s hypothesize, the difference between a cautious attorney general who wants to follow norms and a “damn the torpedoes” attorney general who doesn’t mind blowing them up in order to bring Trump to justice as soon as humanly possible. And let’s imagine as well that the indictment was of a reasonable quality notwithstanding the rush. Would things have been different?
The answer seems to me pretty clearly not.
For starters, we know exactly how the first year plus would have played out—because there is no reason to imagine it would have been any different from the time since August 2023. Trump would have asserted presidential immunity, the same as he did, in fact. It would have been rejected in the lower courts, just as it was in our world. And the Supreme Court would have accepted it to a considerable degree such that it required a great deal of subsequent pre-trial litigation, just as the justices did a bit later. Imagine that this process ate up just under a year, just as it actually did.
So now in our hypothetical world it’s late 2022 or early 2023, and we are roughly where we are now in the litigation. The Supreme Court has instructed the lower court to figure out all the immunity stuff and then have another round of appeals all the way up to the Supreme Court before trial—and not to rush things. Since the Supreme Court ruled back in April, about six months have gone by with very little progress even at the first step of this arduous pretrial journey. We are, to put the matter bluntly, nowhere near district court resolution of the privilege issues.
So even if this case were not about to go away and Trump were not about to become president, do you really think we’d be done with trial a year and half from now? If so, I want some of whatever you’ve been smoking. In fact, we’d be lucky to be done at the D.C. Circuit Court of Appeals by then.
If you don’t think we’d have a completed trial wrapped up, then Garland and Monaco’s pokiness—even assuming it was real and not merely optical—was not the rate-limiting step. It was not the factor that prevented Trump from facing conviction before the election. The rate-limiting step, rather, was the onerous set of conditions the Supreme Court put in the way of a president facing trial for Jan. 6 or any other conduct that took place while he was in office.
To be clear, I am not saying that the investigation was handled with optimal speed. And I have a lot of questions about a number of choices regarding both the Jan. 6 investigation and the classified documents case. Most pointedly, I have never understood the decision to bring the classified documents case in Florida, rather than to try to establish venue in Washington, D.C. using the many points at which Trump’s alleged conduct interacted with the jurisdiction of the federal government in Washington.
All of these questions, including the speed question, are legitimate.
But the search for an explanation for Trump’s election in the individual decisions of law enforcement figures is wrongheaded. Donald Trump didn’t get elected in 2016 because of Jim Comey, and he didn’t get elected this year because of Merrick Garland either. The sooner we stop looking for investigative “but for” explanations in the justice system and start facing the reality of his attraction to tens of millions of people, the sooner we can hope to begin counteracting those attractions.
The Situation continues tomorrow.
– Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books. Published courtesy of Lawfare.
