Like some of my legal heroes of these days — like Lawrence Tribe and Neal Katyal — I’ve been very uneasy about how the Attorney General has apparently been dealing with Trump’s evident criminality— the slowness, hesitancy, apparent timidity with which he’s approached the challenge of dealing with a former President who tried to seize power and overthrow the Constitution.
(I doubt I need to elaborate on any of that for readers here.)
But there’s one possible interpretation of what we’ve seen from the DOJ — and, more to the point, what we haven’t seen — that would make sense, and would even perhaps gain my approval.
Now, if I had been AG, I am sure I would have been bolder. I’d acknowledge that prosecuting an ex-president has its risks: we don’t want to take the path of those banana republics where the law is used as a weapon against rivals. But Trump’s conduct — right out in the open — quite blatantly demonstrated that investigation/prosecution wasn’t some sort of political prosecution, but was required by the oath of office the AG and everyone else is required to take.
I’d have thought that contrary to the notion that a President deserves special consideration and kid-gloves treatment, the crimes of a President are more dangerous, less forgivable, and more important to prosecute than any other. Unlike some guy who holds up a convenience store in some town, the President has the power to damage the entire nation.
(When then-President Gerald Ford declared that “Nixon has suffered enough,” as he pardoned his predecessor, I thought Ford had it quite backwards. The disadvantaged youth, who hasn’t had a break, who grew up in poverty and had little opportunity, and then turns to crime— he has likely suffered all too much. But Nixon, by contrast, had been given by this nation positions of honor and privilege. Not only were his crimes more damaging to the nation, but if the humiliations of being driven from the highest office in the land were suffering “enough,” then our prisons are filled with people who have suffered more than enough.)
If I were AG in the wake of Trump’s attack on the rule of law, I’d acknowledge that the Trumpian base would be enraged at the prosecution of their Dear Leader. But I would figure that 1) they’ve made it clear that there will have to be some sort of reckoning with them, and 2) I can think of no better ground too have it out with them than enforcing the law, and honoring my oath of office, against a criminal President who attacked the very constitutional order he’d also taken an oath to protect and defend.
But I can imagine being persuaded that there’s a better course than the aggressive one that looks right to me. I can imagine being persuaded to take the issue of popular support more seriously. I can imagine taking the course that I HOPE is what Garland has chosen, namely:
Knowing that criminal investigations are not right out in the open — e.g. nothing gets said until there’s an indictment (and even then much is not disclosed until there’s a trial) — I would welcome the work of the 1/6 Committee that puts the damning picture of Trump out for the American people to see. I would wait to take any clear action against Trump until the hearings had moved public opinion — as it has — so that when the DOJ is seen to be moving to hold Trump accountable for his crimes, the maximal number of Americans can see the rightness of such DOJ action.
Garland, in other words, might have decided that — weighing the various costs and benefits of different courses of action — the best course for the nation would be to wait to demonstrate that “no one is above the law” until the potential destructive consequences of prosecuting a former President, with a following like Trump’s, have been minimized.
Well, the Committee has done most of its job at this point. It has done brilliant work to bring Trump’s monstrosity into clear relief. The way the Committee has shown the American people the ugly truth about Trump that the DOJ would never be able to do on its own (because of the rules regarding such things.) The hearings have already had a visible impact on parts of the American body politic that might have questioned or outright opposed the Department of Justice acting against Trump for his crimes.
If that was Garland’s strategy — as I hope it has been — the time is soon at hand for the DOJ to swing more vigorously into action. If that was a reason to hold back, and let the 1/6 Committee soften the target (like artillery before the advance of the troops), there will soon be no reason for DOJ to hold back from the attack.
As many have said, whatever the dangers of prosecuting Trump, they pale before the disastrous dangers of failing to prosecute him.