Facts already in evidence point to Donald J. Trump having a rendezvous with accountability. In New York state and/or via a Jan. 6 committee referral to the Department of Justice and/or via the DOJ. itself. It cannot come too soon. Or can it?
President Joe Biden came down pretty hard on his predecessor in his Jan. 6 anniversary speech. Attorney General Merrick Garland was more measured, promising to “follow the facts — not an agenda or an assumption.” That left more than a few pundits with the assumption that Garland is doing nothing. Nothing in evidence anyway.
I’m gonna go with E.J. Dionne on this one:
But when it comes to the possibility of prosecuting Trump, we should welcome the fact that Garland is not talking about what, if anything, he is doing. Recall that progressives and Democrats were rightly enraged in 2019 when then-Attorney General William P. Barr publicly distorted the findings of special counsel Robert S. Mueller III’s inquiry and quickly dismissed the prospect of prosecuting Trump.
They were also angry when then-FBI Director James B. Comey, in announcing his 2016 decision not to prosecute Hillary Clinton in connection with her use of a private email server, also (inappropriately) chose to go on and on about the case. He criticized Clinton, during the presidential campaign, for being “extremely careless” and called her use of a private server “especially concerning.”
Comey’s job in the Clinton case was in law enforcement, not commentary. The same is true of Garland where Trump is concerned. Yes, the attorney general could announce that he is investigating Trump — if he is. But given how extraordinary indicting a former president would be, are we not better off with the standard Garland articulated? “We will and we must speak,” he said, “through our work.”
Much of the criticism aimed at Garland comes from him not announcing an investigation into Trump, as well as a lack of leaks from his department regarding a Trump investigation, leaks Robert Mueller trained his investigators not to make. This in spite of the fact that “legal scholars Laurence H. Tribe, Barbara McQuade and Joyce White Vance itemized potential crimes Trump may have committed in the course of his efforts to overturn the election.”
The political pitfalls of a Biden DOJ indicting the president he defeated are significant. But, Dionne reminds, it was “Republicans who, in opposing Trump’s impeachment, argued that he could face criminal indictment after he left office.” They themselves set out a welcome mat for a future attorney general.
The fear among progressives reflexively inclined to see Democrats as weak and feckless is that, hearing no announcement from the DOJ and hearing no whines from near-Trump allies, that Garland is doing nothing. No news suggests to them that Trump and his crew will escape accountablility just as Wall Street bankers did after the financial crash.
Marcy Wheeler believes that reaction is premature. On Saturday, she responded to criticism of Garland:
Because I keep having to lay out the proof that DOJ, in fact, has investigated close Trump associates of the sort that might lead to Trump himself, I wanted to make a list of those known investigations. Note that three of these — Sidney Powell, Alex Jones, and Roger Stone — definitely relate to January 6 and a fourth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.
A fifth investigation involves Tom Barrack, the man who recommended Paul Manafort as Trump campaign manager. He was indicted in July last year as an unregistered agent of the United Arab Emirates via a referral from Robert Mueller, proving Garland’s DOJ will move on such referrals. The sixth involves “one more grand jury investigation into a powerful Trump associate that I know of via someone who was subpoenaed in the investigation in the second half of last year.”
Wheeler concludes:
It baffles me why TV lawyers continue to claim there’s no evidence that Merrick Garland is investigating anyone close to Trump — aside from they’re looking for leaks rather than evidence being laid out in plain sight in court filings. One of the first things that Garland’s DOJ did was to take really aggressive action against the guy who led Trump’s efforts to launch a coup. Alex Jones and Roger Stone are clearly part of the investigation into how the breach of the East doors of the Capitol came together, and the two of them (Jones especially) tie directly back to Trump.
There are other reasons to believe that DOJ’s investigation includes Trump’s role in the assault on the Capitol, laid out in the statements of offense from insurrectionists who’ve pled guilty, ranging from trespassers to militia conspirators. But one doesn’t even have to read how meticulously DOJ is collecting evidence that dozens of people have admitted under oath that they participated in the attack on the Capitol because of what Trump had led them to believe on Twitter.
Because DOJ clearly has several other routes to get to Trump’s role via his close associates. I’m not promising they’ll get there. And this will take time (as I’ll show in a follow-up). But that’s different than claiming that this evidence doesn’t exist.
“Absence of evidence is not evidence of absence,” for those who doubt Wheeler’s reading.
Democrats have already “come at the king” twice and missed. They (and we) cannot afford to miss again. Patience. I’m not going to call for heads on pikes. That’s Trump’s style.