Good luck prosecuting Tump and his insurrectionist allies in Congress
Attorney General Merrick Garland’s tenure in the Department of Justice would never be anything but rocky. Faced with presiding over investigations on multiple fronts into a former president, the appointment of a special counsel, Jack Smith. to oversee them has taken little heat off Garland. Those who believe equal justice cannot touch the powerful will remain doubtful.
Face it, even a conviction of Donald Trump on any charge will not allay those fears any more than Trump’s loss in 2020 was the end of his story. Trump will pull out all the stops to delay prosecution and appeal any conviction.
Glenn Thrush sees Smith appointment as a signal that the cautious Garland’s “willingness to operate outside his comfort zone — within the confines of the rule book — in response to the extraordinary circumstance he now finds himself in.” The department has tried to “counter Mr. Trump’s claims that they are engaged in a partisan witch hunt intended to destroy him.”
Good luck with that (New York Times):
Mr. Garland appears to view Mr. Smith as more of an internal decision maker than a public buffer: The attorney general intends to follow the letter of the statute, and will most likely accept Mr. Smith’s findings unless his conclusions are “inappropriate or unwarranted” under the department’s precedents, a person familiar with his thinking said.
Smith has been outside the country since 2018 prosecuting war crimes in The Hague. This gives the appearance that the registered independent brings an outsider’s perspective to both the Jan. 6 and Mar-a-Lago documents cases. In theory, anyway, if not in right-wing media.
The documents case appears to be proceeding more quickly than the Jan. 6 investigation. Public filings and interactions between law enforcement officials and defense lawyers indicate that a lot of work remains, and law enforcement officials with knowledge of the investigation emphasized that the department was unlikely to sign off on charges unless it was convinced that it would prevail in court.
Evidence made public points to a case based on a section of the Espionage Act, which makes it a crime to mishandle closely held national defense information — and a potential obstruction of justice charge stemming from the former president’s refusal to comply with the subpoena in May.
“The obstruction charge looks more and more to be the most compelling charge for the government to bring,” said David H. Laufman, the former chief of the counterintelligence unit of the Justice Department, which is leading the Mar-a-Lago investigation.
One of the biggest questions Mr. Smith is likely to face is whether prosecutors would consider bringing only an obstruction case without addressing the underlying possibility of an Espionage Act violation. Some prosecutors see that as the most straightforward path to a prosecution. Mr. Garland’s announcement of a special counsel referred to obstruction three times.
Elliot Ness brought down gangster Al Capone with multiple tax evasion charges. That might have been unsatisfying given Capone’s violent history, but it got him off the street. Smith may have to take a similar approach. And Garland? It’s lose-lose anyway this goes down.
The lesson in the last chapter of Rachel Maddow’s “Ultra” is that cases involving powerful people may just beyond the capacity of the Department to prosecute. John Rogge, the prosecutor in the 20th century’s largest sedition case — against a fascist plot by Nazi collaborators to overthrow the U.S. government — found the tools at his disposal in adequate to fend off the political ones wielded by implicated members of Congress:
Maddow: “We had reached the point where our legal remedies were inadequate.”
What John Rogge saw, what he had been up-close to in his prosecutions, was an entrenched ultra-right movement in this country, opposed to democracy, which saw violence as a legitimate means of achieving political aims. One that had support not only among some parts of the far-right media, but also among elected political leaders on the right.
He saw alongside that a criminal justice system that was simply unable to deal with that threat.
What do you do as a country when you are faced with that?
When you are up against those kinds of forces, trying to tear apart the very thing that makes you the country you are? How do you push back against it?
The DOJ eventually backed down on that WWII-era case. In the end it was the voters who held politicians involved accountable. But only because they had been exposed in the papers. Sunlight being the best disinfectant.
Smith “will make recommendations on whether to prosecute and could produce a report, which the attorney general may make public.” May.
The Truman administration buried John Rogge’s report rather than further roil official Washington and implicate the powerful.
Manage your expectations regarding Trump and his congressional allies. There are no guarantees.