Will Merrick Garland Defend Democracy?

He came in wanting to depoliticize the Justice Department. But does that mean letting an ex-president get away with subverting democracy?

Eric Holder, the former frontline prosecutor and local judge who served as Barack Obama’s first attorney general, was never a fan of Donald Trump, but he responded cautiously in 2019 when asked whether Trump should face prosecution even after he left office. “I think there is a potential cost to the nation by putting on trial a former president, and that ought to at least be a part of the calculus that goes into the determination that has to be made by the next attorney general,” Holder told David Axelrod in a CNN interview. But in the wake of the January 6 riot and related investigations, Holder’s view appears to have significantly hardened. Appearing in early May on CBS News’ Face the Nation, Holder offered a tougher assessment: “At some point, people at the Justice Department, perhaps that prosecutor in Atlanta, are going to have to make a determination about whether or not they want to indict Donald Trump.” Asked by interviewer Margaret Brennan if he would issue such a criminal indictment, Holder said he thought available evidence would justify that. “My initial thought was not to indict the former president out of concern of what—how divisive it would be. But given what we have learned, I think that he probably has to be held accountable.”

By Mark Hosenball

Many Trump opponents, including key Democratic politicians, have for months been calling for the Justice Department, under the leadership of Attorney General and former federal appeals court judge Merrick Garland, not only to file harsher charges against a wider range of alleged January 6 riot participants but to prosecute reputed riot organizers. Possible targets range, Trump critics and some legal experts say, from internet activist Ali Alexander and veteran Republican operative Roger Stone to right-wing law professor John Eastman, author of the infamous memo laying out how Republicans could overturn the presidential election results, to Trump White House aides to, most notably, Trump himself. Former White House chief of staff Mark Meadows is of particular interest. Some witnesses are known to have testified to the House committee investigating the January 6 riot that he was directly warned about possible violence. Cassidy Hutchinson, a Trump White House assistant, said that in early January 2021 “there were concerns brought forward to Mr. Meadows” indicating “that there could be violence,” but added that it was unclear to her if Meadows “perceived them as genuine concerns.” Rolling Stone reported that two anonymous sources told its reporter about how they had participated in “dozens” of briefings in the days before pro-Trump rioters attacked the Capitol. One source told the magazine that Meadows was totally clued in on such discussions. “Meadows was 100 percent made aware of what was going on,” the source said.

How much Trump himself knew remains unclear. At the “Stop the Steal” rally near the White House not long before the start of the riot, Trump told the crowd: “We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them, because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.” Some information about what he was up to privately, on January 6 and before, has been leaked, including the rather stunning revelation by The New York Times in late May that he reacted approvingly as he watched the rioters chant “Hang Mike Pence!” but not enough to draw firm conclusions on whether he committed crimes.

Jonathan Winer, a former congressional investigator and State Department official, said in an interview that evidence is building that the Trump White House discussed calling out the National Guard to back Trump and his supporters as they sought to prevent the certification of the election for Joe Biden. In January, Winer wrote a widely circulated article laying out the case for prosecuting Trump, citing specific sections of the U.S. Code under which a prosecution could potentially be made (18 U.S. Code § 242, “deprivation of rights under color of law”). In Winer’s view, the riot and efforts by Trump and his entourage to manipulate politics and the law to keep Trump in office “were inextricably linked.” There was a “plot by Trump and Meadows to overturn the election,” he said. At present, however, Winer and other current and former officials following investigations acknowledge, Justice Department interest in these issues is unclear at best.

The political calendar is inexorably moving forward. If Republicans, still under strong Trump influence, recapture control of the House in this year’s congressional elections, they will likely shut down the January 6 investigation committee. Instead, a Republican House majority would almost certainly redirect investigative resources and attention to scandals they believe could damage Democrats in general and the presidential family in particular, such as the dubious business dealings of Hunter Biden. The possibility, if not likelihood, of a Republican takeover in the House—and maybe the Senate, too—has already fueled speculation inside law enforcement and political circles that any potential move by Garland’s Justice Department to file January 6–related criminal charges against Trump himself and/or his family and top aides would have to be undertaken before the end of 2022. Some recent public statements and news revelations suggest that the department has definitely begun to look into issues such as the inspiration and origins of the January 6 riots and into alleged efforts in multiple states by Trump supporters to replace legitimate Biden electors with fraudulent pro-Trump electoral slates. But such investigations appear to be in relatively early stages, and it is unclear how advanced they will be by the November elections.

In this evolving drama, the individual who will be principal screenwriter and director is Merrick Garland. Officials and legal experts observing how the investigation is unfolding are wondering how dramatic the final act will be. Maybe Garland and his team are moving forward toward Trump and other prominent possible targets with “exceptional secrecy,” said Andrew Kent, a national security expert at Fordham University School of Law. But at present, Kent said, “I’m reading the absence of tea leaves” regarding how high up the investigation will go. A former senior Justice Department official said that until recent news reports suggested a significant widening of the department’s investigation, “I thought they had decided not to go after Trump.” The former official said that if prosecutors were really seriously going after Trump, there ought to be more public indication they were calling relevant witnesses before grand juries.

A former U.S. official in close contact with key Trump critics in Congress said that the possibility of criminal charges against Trump cannot be ruled out. “But on the other hand, we don’t know,” the former official said. “It’s a black box.” This source also told TNR that top legal aides in the House had spoken of “a priestlike vow of silence” Garland had imposed on the department, telling employees not to reveal any details of its actions to House staff. That is, the department—both “Main Justice,” as the department is referred to by insiders, and all U.S. attorney’s offices—receives evidence from House investigators, but it tells them nothing about its activities. The source added, by the way, that this is probably a good thing, because it protects the department from charges of politicization.

It is this last point, the depoliticization of the department, that has been a key Garland priority. After what Bill Barr and Donald Trump did to Justice, it’s hard to blame him, and it’s an admirable position. But given that a prosecution of Trump will be instantly politicized by the right, does that mean that Garland could back away from such a move, even if justified by the facts, because it would seem “political”? Garland could find himself restoring independence and integrity to the Justice Department—while simultaneously allowing the subversion of democracy by a former president.

Laying the Groundwork

The case for the possible prosecution of Trump and top aides can be traced back to the days shortly after the riot. Congressional committees began serious investigations of the January 6 events and the background to them at that time. In a report issued in June 2021, two (Democrat-led) Senate panels, the Rules and Administration and Homeland Security and Governmental Affairs committees, said they found “critical breakdowns” in intelligence operations, including information collection and sharing, by the Department of Homeland Security and FBI. The committees found that spy agencies underestimated the seriousness and nature of the threat to the Capitol on January 6, and that the FBI did not share relevant information it had with police guarding the Capitol.

A report by the Senate Judiciary Committee published last October widened the focus to Trump and his political allies—and directly raised the issue of whether Trump himself violated laws. The committee found that the country was “only a half-step away from a full-blown constitutional crisis” when Trump and his entourage “threatened a wholesale takeover of the Department of Justice.” The Judiciary report included an account of how Jeffrey Clark, acting head of the Justice Department’s Civil Division, whom Trump at one critical point tried to install as acting attorney general, tried to pressure other DOJ officials to overturn the election results. A principal Judiciary Committee finding was that Trump repeatedly pressured DOJ leadership “to endorse his false claims that the election was stolen and to assist his efforts to overturn the election results.”

Beginning on December 14, the day former Attorney General William Barr announced his resignation, and continuing almost until the January 6 insurrection, Trump directly and repeatedly asked DOJ’s acting leadership to initiate investigations, file lawsuits on his behalf, and publicly declare the 2020 election “corrupt,” the committee said. Documents and testimony confirmed that Jeffrey Rosen, Barr’s successor as acting attorney general, and in some cases other senior DOJ leaders participated in several calls and meetings where Trump directly raised discredited claims of election fraud and asked why DOJ was not doing more to address them. The committee said these contacts included multiple calls between Trump and Rosen and Trump and Richard Donoghue, an associate deputy attorney general, and Oval Office meetings that included Rosen and Donoghue on December 31 and January 3. The committee declared, “In attempting to enlist DOJ for personal, political purposes in an effort to maintain his hold on the White House, Trump grossly abused the power of the presidency.”

According to the committee the House set up to investigate the insurrection and its origins, Trump engaged in detailed discussions with Pence and others about what powers the vice president might have to alter the election results. The committee notes that at 1:00 a.m. on January 6, Trump tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency.... Mike can send it back.” Seven hours later, Trump tweeted: “States want to correct their votes ... All Mike Pence has to do is send them back to the States, and we win. Do it Mike, this is a time for extreme courage!” The committee said Trump called Pence personally to pressure him to act.

“It’s clear there was a coordinated attempt to weaponize the Justice Department to subvert the election. Investigators need to examine every aspect of that effort, from pressuring Georgia legislators and election officials to scheming to install Jeffrey Clark as Attorney General. This has to be a top priority,” Senator Sheldon Whitehouse, the Rhode Island Democrat who is a senior Judiciary Committee member, said in an email.

The Judiciary Committee’s report didn’t aim only at Trump. It found that “Meadows asked acting Attorney General Rosen to initiate election fraud investigations on multiple occasions, violating long standing restrictions on White House-DOJ communications about specific” cases under investigation. The committee said “Meadows asked Rosen to have DOJ investigate at least four categories of false election fraud claims that Trump and his allies were pushing.” Meadows asked Rosen to have the DOJ look into “various discredited claims of election fraud in Georgia that the Trump campaign was simultaneously advancing in a lawsuit that the Georgia Supreme Court had refused to hear on an expedited basis.” Meadows also asked the DOJ to “investigate a series of claims of election fraud in New Mexico that had been widely refuted,” including a claim that machines built by Dominion Voting Systems produced late-night “vote dumps” for Democratic candidates.

Meanwhile, in contrast to the Judiciary report, for months after the riot, FBI and prosecutors’ analyses of what happened on January 6 focused almost exclusively on the riot and its direct participants. In a story that attracted angry responses from some Trump critics, a colleague and I reported for Reuters on August 20 of last year that five current and former law enforcement officials—very well placed—told us that FBI investigators at that point had found “scant evidence that the Jan. 6 attack on the U.S. Capitol was the result of an organized plot to overturn the presidential election result.” The FBI still believed the violence was not centrally coordinated by far-right groups like the Oath Keepers, Proud Boys, and Three Percenters, or by prominent Trump aides or supporters.

However aggressively congressional investigations proceed, most notably by the House select committee, it remains unclear how closely Garland’s Justice Department will follow. Recent developments indicate that the department has significantly widened the scope of January 6–related investigations and is examining issues beyond the riot itself. One key move earlier this year signaling that Justice was toughening its approach was a federal grand jury indictment issued on January 12 featuring “seditious conspiracy” charges against Stewart Rhodes, the leader of the Oath Keepers, and 10 other members of the group. The first seditious conspiracy charges were filed a few months after Matthew Olsen, a former director of the National Counterterrorism Center, was confirmed as assistant attorney general in charge of the Justice Department’s National Security Division. (It is not clear what role Olsen might have played in determining how the Oath Keepers case should move forward; Olsen did not respond to requests for comment.)

Another signal of the department’s seriousness came in late January, shortly after the seditious conspiracy indictment was issued, when Lisa Monaco, Garland’s deputy attorney general, confirmed in a CNN interview that the Justice Department was investigating slates of electors assembled by Trump supporters that declared Trump the winner in seven key states whose governments had already certified Biden as winner of their electoral votes. Recent federal court rulings also appeared to openly encourage a possible prosecution of Trump. In late February, Amit Mehta, one of the D.C. federal judges hearing January 6 cases, ruled that Trump could be held civilly liable for egging on participants in the Capitol riot. Then, in an explosive late March opinion ordering Eastman to turn over key emails to House investigators, David Carter, a federal judge in California, found that Trump “more likely than not ... corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.” He wrote: “The illegality of the plan was obvious.”

Also in late March, reports began to surface that the Justice Department focus had expanded to include persons around Trump, and possibly even Trump himself. The Washington Post reported that the criminal investigation had expanded to examine “preparations” for January 6, including the issuing of subpoenas to unidentified “officials in former President Donald Trump’s orbit” who assisted in planning, funding, and executing the rally that preceded the Capitol riot. The New York Times also reported that the expanded Justice Department investigation included the involvement of government officials in efforts by Trump to “obstruct the certification of President Biden’s Electoral College victory” as well as alleged efforts by Trump supporters to put forward bogus slates of electors. The Times also said it had seen a subpoena indicating prosecutors were seeking information on people “classified as VIP attendees” who were present at Trump’s pre-riot rally. Then, in early May, the Times reported that the Justice Department had opened a grand jury investigation into possible mishandling of classified documents by Trump as he brought boxes of official materials with him when he left the White House for Mar-a-Lago.

But Was It Illegal?

But egregious as Trump’s behavior was, the question remains whether it was illegal—especially given that Trump was president at the time, and U.S. jurisprudence is ambiguous at best on how strictly laws apply to sitting presidents. A story involving the Oath Keepers’ Rhodes, the hard-right anti-government figure who wrote after Biden’s victory that the United States now faced “a moment of peril as great, or greater, as what General Washington and his men faced in 1776,” provides a tentative window on White House contacts with rioters.

READ MORE WAFFLE AND BULLSHIT:

https://newrepublic.com/article/166734/merrick-garland-january-6-trump-defend-democracy

.... the United States now faced “a moment of peril as great, or greater, as what General Washington and his men faced in 1776,” WHAT A LOT OF CODSWALLOP!!!!!!! Read the effin US history effin again.....

Time to read Sir Henry Bolte again:

"I feel we did take some risks in that by-election by leaving the results to the electors."

FREE JULIAN ASSANGE NOW.......