“In hindsight, Donald Trump’s intentions could not appear clearer,” writes The New Yorker‘s David Rohde of how Trump’s Big Lie led to the Jan. 6 insurrection. And Trump’s character? that has been on public display his entire life.
The problem facing Attorney General Merrick Garland, federal and state investigators from New York to Georgia, is that if they are not meticulous about assembling their cases, vague laws and legal loopholes may allow the slipperier-than-Willie former official “to escape being criminally charged for his role in events surrounding the attack.”
His whole life, Trump has been careful not to use email, and not to issue direct written or spoken orders to obsequious courtiers. “He speaks in code,” former Trump personal attorney Michael Cohen told Congress. “You don’t need to actually tell somebody to do it before which you create this belief that this is what Donald wants us to do.”
Thus, it is “too early to say” what the House investigation into Jan. 6 will yield, said one staffer with knowledge of the investigation:
Recent statements by the committee chair, Bennie Thompson, and the vice-chair, Liz Cheney—one of only two Republicans on the panel—have raised expectations that the panel will refer Trump to the Justice Department for criminal prosecution. Such a step would increase the political pressure on Attorney General Merrick Garland to prosecute Trump. In a television interview on Sunday, Thompson said that the panel is examining whether Trump committed a crime: “If there’s any confidence on the part of our committee that something criminal we believe has occurred, we’ll make the referral.” And Cheney, in a speech last month, mentioned a specific charge: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?”
The staffer suggests, however, that “The criminal-referral stuff has gotten blown out of proportion” by the press.
Whether or not Trump explicitly ordered the attack, arrestees from one year ago claim they were at the Capitol at Trump’s direction to prevent the electoral vote count from going forward. Michael Cohen knows how they feel.
Ultimately, the decision about whether to prosecute Trump lies with Garland, a former federal judge who has made restoring public faith in the political neutrality of the Justice Department his core goal. Despite Garland’s attempts to divorce the Justice Department from politically charged prosecutions, it is increasingly clear that investigating Trump is becoming the defining issue of his tenure. The continued defiance of Trump and his allies is forcing Garland to make a decision faced by none of his predecessors: whether to prosecute a former President who tried to subvert an election and appears ready to do so again. Democrats are demanding that Garland move more aggressively, with Representative Ruben Gallego, of Arizona, declaring his effort so far “weak” and “feckless,” and contending that there are “a lot more of the organizers of January 6th that should be arrested by now.”
That frustration is understandable. Critics slam investigators because Democrats make easier targets and because there is no chance their criticisms of Republicans will sting. They want heads on pikes, as if becoming their adversaries will reestablish the small-D democratic norms that undergird our formal political arrangements.
David Laufman, a former senior Justice Department official, said he disagreed with criticism of the Justice Department for not having already charged Trump criminally. “Notwithstanding the horrors of January 6th, D.O.J. should not be pursuing criminal investigations or prosecutions against former President Trump or others connected to the attack on the Capitol unless both the facts and the law support doing so under established policy,” he said. “It’s the ‘Department of Justice’—not the ‘Department of Retribution’—and we don’t want to see the rule of law eroded just to make us feel good.” But Laufman also called for prosecutors to not go easy on Trump, adding that the department shouldn’t “be shying away from using the full weight of its enforcement authorities against Trump or anyone else simply because doing so could be perceived as politically motivated.”
Rohde concludes:
In an era when the majority of Republicans falsely believe that the 2020 election was fraudulent and the majority of Democrats think that it was not, Garland will be demonized no matter what action he takes regarding Trump. The Attorney General, based on his speech, continues to believe that he can restore “normal order”—a Justice Department term for basing decisions on whether to charge defendants strictly on the facts of a case. He continues to believe that the majority of Americans still support the principle that all people should be treated fairly under the law, including Donald Trump. And that the majority will reject political violence and trust the judicial system. At the moment, that belief, for Garland and all Americans, is an enormous political gamble.
Ephesians 6:12 (KJV) For we wrestle not against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in high places.
And, as President Biden said this morning, against “self-seeking autocrats.” With allies prone to violence.
“You come at the king, you best not miss.”