Why Isn’t Merrick Garland Locking Them Up?
The attorney general is looking more and more like a speed bump on the way toward justice.
Updated at 5:10 p.m. ET on November 12, 2021
Earlier today, tape surfaced of Donald Trump defending the insurrectionists who broke into the Capitol, chanted “Hang Mike Pence,” and built an actual gallows. Here’s what he said about Pence to ABC’s Jonathan Karl in March: “How can you—if you know a vote is fraudulent, right?—how can you pass on a fraudulent vote to Congress? How can you do that? And I’m telling you: 50/50, it’s right down the middle for the top constitutional scholars when I speak to them. Anybody I spoke to—almost all of them at least pretty much agree, and some very much agree with me—because he’s passing on a vote that he knows is fraudulent. How can you pass a vote that you know is fraudulent?”
While upsetting, this news cycle is not all that surprising. After all, we’re sort of used to Trump defending the indefensible. Over the Trump administration’s four long years, we saw a lot of Republicans being low-key shady and sometimes high-key shady, from alleged violations of the Hatch Act, to self-dealing, to election interference, to an attempted coup. It’s no longer particularly surprising when a member of Trumpworld is arrested, indicted, or pardoned.
Alarming as this all was, I always thought that at least once Democrats took over, they would hold Republicans responsible for their actions. After all, Democrats are the good guys, the ones who follow the rules, right?
Well, Democrats now control the White House, the Senate, and the House, and I’m not seeing much in the way of holding Republicans accountable. There are many reasons why enforcing the law is the right thing to do. It’s the law, for one, and the law is Merrick Garland’s job. Another reason: It’s clear that if Democrats don’t enforce the law, no one will. It’s hard to imagine Republicans holding Trump accountable for trying to steal the election when they continue to pretend that they “didn’t see the tweet” or, as we’ll probably hear today, the tape of Trump defending violent insurrection.
As Brian Klaas, an associate professor of global politics at University College London, told me, “Rule of law requires prosecution of criminals, even, or especially, when there are political risks involved. Letting prominent Republicans ‘get away with it’ out of a misguided attempt at bipartisanship doesn’t just undercut rule of law; it also will make the GOP’s descent into authoritarianism accelerate.”
Congressman Adam Schiff seems to agree. Here’s what he shared with me: “For the rule of law to mean anything, it must apply equally to all Americans. The Department of Justice must be judicious in its actions, but they must also recognize that undue delay will only benefit those who are seeking to hide the truth from the American people about the attack on our democracy. All of us on the select committee feel a great urgency to expose the truth, and we know the former president and those around him have used delay tactics to frustrate accountability—they cannot be allowed to succeed in this case.”
Plus, holding Republicans accountable is politically smart. Remember what they themselves did to Hillary Clinton: Democrats have a chance to Benghazi the guy who actually did bad things, so why aren’t they doing it?
“If Garland decides not to prosecute [Steve] Bannon [after Congress held him in contempt for defying a subpoena], it’s an open invitation to defiance,” legal analyst Elie Honig told me. “Other Trump loyalists—Meadows, Clark, and the rest—can freely defy the committee without meaningful consequence.” Another reason we as a culture tend to prosecute crimes.
Before Trump became president, the Republican-controlled House of Representatives conducted six investigations into Benghazi, forcing then–Secretary of State Hillary Clinton to testify for 11 hours. Representative Kevin McCarthy, leader of the House at the time, broke down the results of this to Fox News: “Everybody thought Hillary Clinton was unbeatable, right? But we put together a Benghazi special committee, a select committee. What are her numbers today? Her numbers are dropping. Why? Because she’s untrustable. But no one would have known any of that had happened had we not fought.”
Now, McCarthy is a moron, but he had a really good point. Republicans worked hard to smear Clinton. Donald Trump tried to overturn the election, and he’s off playing golf and planning his return to public life. Merrick Garland has gone from a beloved almost–Supreme Court justice to an annoying speed bump who seems unwilling to stand up for democracy and the rule of law. Maybe Garland thinks that holding Republicans accountable will somehow further inflame tensions. This thinking would, of course, be insane, but I can see traditional Democrats holding this view.
Benjamin Wittes, a senior fellow at the Brookings Institution and editor of Lawfare, sees things a little differently. “From a layman’s perspective, a lot of people think it’s simple,” he told me. “Congress subpoenas you. You defy the subpoena. Congress holds you in contempt, and the Justice Department prosecutes you ... from the Justice Department’s point of view, it is not and cannot be that simple. There are complex questions they need to work through before they can bring a case. And that takes time.” (Read his piece expanding on this point.)
As the lawyer, Washington Post columnist, and leading anti-Trump Republican George Conway told me, “White-collar criminal cases take time to put together, and prosecutors are being careful. At least that’s what I hope is going on.” Yeah, so do we all.
A year ago, Masha Gessen told me, “The way to fight fascism is with narrative.” We are not getting that narrative. In fact, a new narrative is taking hold in right-wing media—one that paints Trump as a victim and the insurrectionists as heroes.
If Merrick Garland is afraid of raising the temperature in this country, he should understand that the mercury is already boiling. The person who could lower it is Rupert Murdoch, but he won’t, because there’s more money to be made. Democrats need to restore democratic norms, and that’s it. This isn’t about being comfortable: This is about whether or not we’ll be able to keep democracy. Right now, I’m not so sure we will.
This article has been updated to reflect that Donald Trump's comments about January 6 were made in March, and that the tape surfaced today.