I’ve been writing since 2004 about how a Destructive Force has been taking over the Republican Party, and about how the other component in the American crisis has been the failure of the Liberal/Democratic side to respond adequately to that rising, fascistic threat.
- That was the major theme of my 2005-2011 blog, NoneSoBlind.org.
- That was why I published an open letter in the Baltimore Sun near the end of Obama’s first year in the Presidency (2009), exhorting Obama not to ignore the battle he was elected to fight and win.
- That was why, in 2011-12, I did something I never imagined I would do, running as the Democratic nominee for Congress against Bob Goodlatte (in VA-06), with the slogan “Let’s Talk About the Elephant in the Room” – a slogan that pointed both toward the problematic Elephant (the extraordinarily dangerous political force the Republican Party had become) and toward the failure of the others in the room to talk about that problem. That’s why my message to the Democrats in that campaign was that our side is part of the problem: “While the Republican Party insists on making a fight over everything, even when the good of the nation clearly required cooperation instead, the Democratic Party refuses to make a fight over anything, even when the good of the nation clearly requires they fight the destructive Force that has taken over the other side.”
- That’s why I published a series in 2014 titled PRESS THE BATTLE, trying simultaneously to show how the political battle had plunged down to a whole different, more fundamental level when it is between a force that consistently works to make things worse, and another political force whose job it is to defend what’s better about America. It was a combination of an elaborate picture of the true nature of the battle and a heartfelt Call to Battle.
- And two years later, I published a book titled WHAT WE’RE UP AGAINST: The Destructive Force as Work in Our World — and How we Can Defeat It. (Written and published before Donald Trump had even entered the political arena — finally making it inescapably clear just how dark the Republican world had become.) That book represented another Call to Battle attempting to get Liberal America and the Democratic Party to see the extraordinarily dark nature of the Republican Party, and to fight the political battle as it should be fought.
So my heart sank with unpleasant feelings of déjà vu when I heard this week’s report of how and why DOJ refused to go after the former President and his accomplices to hold them accountable for their multi-pronged effort to overthrow the results of a legitimate election,
My heart sank in response to this revelation that -- even now, after all these years, after the Fascist threat has become so naked – a truly excellent person like Attorney General Merrick Garland, with excellent values, and great moral integrity, still suffers from the weaknesses and illusions that have enabled Fascism to rise to such power over the past generation.
(I.e. since the rise of Limbaugh and Gingrich and on to Karl Rove as W’s “Brain” and finally this nakedly fascistic attempt to overthrow the government of the United States by violence.)
Even after all that, and even after the entire nation had witnessed the most serious crimes in American history, Merrick Garland was not galvanized to PRESS THE BATTLE.
Or, to be more fair, Garland held back from the fight for more than a year — while eventually he got galvanized enough to appoint a prosecutor in the spirit of Jack Smith. Smith. (Smith — who seems to embody precisely the kind of noble warrior ready to PRESS THE BATTLE that should characterize the whole of the Democratic Side, from President Biden on down, and most emphatically including that person charged to Uphold the Rule of Law: the Attorney General of the United States.)
For more than a year, though, Garland chose to do the opposite of Pressing the Battle. In the face of a direct assault on the American constitutional order, Garland shrank from launching the obviously necessary investigation into all those serious crimes that the January 6th Committee – with fewer tools than the DOJ -- so compellingly laid out for all the nation to see.
Garland went after the foot-soldiers, energetically enough to clog up the courts. But he left alone
- all those people that were involved in that call to the Republican Georgia Secretary of State to “find” Trump the votes he needs to seize Georgia’s electoral votes (that it had already been established that Biden had legitimately won);
- who were involved in the schemes to use fake electors, involved in that meeting in the War Room; and
- who were quite likely in some kind of conspiracy with the people who invaded the Capitol and looked for leaders to assassinate.
I truly admire Garland for his obvious commitment to doing everything right, and to be absolutely scrupulous in applying the Rule of Law, to restoring the integrity of the Department of Justice after the fascistic tool-of-power that Trump and Barr had turned it into. (After Barr had sabotaged the Mueller Report. After all the corrupt ways the DOJ was made into a weapon to punish enemies and protect friends like Roger Stone.)
(Garland showed his scrupulousness in letting Durham’s corrupt inquiry go on until his disreputable work was finished, and in leaving the Trump-appointed U.S. Attorney in Delaware – alone among ALL the U.S. Attorneys -- in place when Biden took office to complete his investigation into the new President’s son, so there could be no conceivable legitimate reason for anyone to suspect that the President’s son had received corruptly favorable treatment. )
The reports tell us that Garland’s main goal was to restore the Rule of Law in America, and the integrity of the DOJ as an instrument free of politics. Garland wanted the American people to see that this Justice Department was all it should be: Complete integrity. By the book. Completely independent. Justice blindfolded.
So he apparently thought that going after Trump and his accomplices would make the DOJ look political.
But – as has been observed -- not investigating and prosecuting the crimes the whole nation had seen – out of his eagerness to prevent Trump’s supporters from believing he was being political -- is itself a way of politicizing the Justice Department.
Events have proved that approach not only mistaken but futile.
It represents the same wrong judgment as President Obama’s at the beginning of his Presidency, when he avoided prosecuting some evident and serious crimes committed in the Bush Presidency: Obama declared, shortly after taking the oath to see that the laws are faithfully executed, that we would look “forward” into the future and not “backward” into the past (where all the crimes that have every been prosecuted are to be found).
Just as Obama feared that Republicans would think that he was going after the other Party, rather than upholding the law as required, so Garland feared that the pro-Trump side of the American body politic would think he was unjustly prosecuting their Leader because he’s their political opponent.
And just as Obama got what he feared anyway -- the Republican world attacking him with rage and hatred anyway, giving him none of that domestic peace Obama imagined he could buy by wiping clean the slate of wrong-doing – so also, despite Garland’s effort to appease, has the Republican world slimed with false accusations all the systems of justice that are fulfilling their duty. “Witch hunt!” “Weaponization of the Federal Government!”
Even as Garland – champion of the Rule of Law -- has bent over backwards to demonstrate the virtues of his DOJ, the people they have tried to win over believe the worst, swallowing all the lies the fascists tell about their corruption.
(The esteemed former federal prosecutor Andrew Weissman declared, on the day of the report of Garland’s not pursuing the leaders of the attempt to overturn the 2020 Election: “The answer is not appeasement. It never works.”)
The only way to keep inappropriate politics out of the operations of justice is just to ignore the politics— neither fear nor favor, treating Trump the way the Law would have treated any other suspected criminal.
If Garland was mistaken, I think the mistake was motivated. Are we to believe that the highly intelligent Garland didn’t understand that he was letting politics govern his decision, when he refused to do what he the Rule of Law required him do to (when he left it instead for the January 6th Committee to do)?
(Even the Republican leader of the Senate, Mitch McConnell, in his speech trying to justify his having his caucus acquit Trump’s impeachment for the coup made it clear that Trump’s incitement of the insurrection was a matter that the DOJ should take up.)
No, I’m guessing that ultimately that flawed argument -- about not going after the coup-plotters in order to be “non-political” – was an excuse to cover up a deeper motivational force.
What Garland’s decision covers up, I suspect, is something -- a defect, a weakness – that has been discernible for years in Liberal America (and the Democratic Party). It’s something that, I’ve long sensed, has been a major reason for Liberal America’s failure – over the past generation -- to fight effectively against this rising Force of Fascism.
That defect might be named: a fear of the Fight.
The kind of combat that this fascistic force has been pressing upon the nation is not something many liberals have had an appetite for. Or, perhaps, have had the stomach to engage in -- even as genuine enemies were becoming dominant on the other side (from the rise of Limbaugh and Gingrich and Fox News and Karl Rove & W…).
Although the Liberal Side has shown itself to be the repository of many of America’s good humane virtues, the Liberal culture has evolved over the past half century to contain a reluctance to do battle.
So we’ve had a systemic problem, as the two sides of the divide polarized into opposites: one political Party that insists on continuous conflict, and that consistently Presses the Battle; and another political Party that does not readily fight with “passionate intensity,” and that never Presses the Battle.
So what I believe we see in Garland’s going after the foot-soldiers, but letting “the greater felons loose,” is that he just didn’t have the stomach for the ugly confrontation going after Trump & Co. would predictably entail. (As we can all now see as all the Trumpian forces attack him – and the judges, and everyone else involved in the present effort to hold them accountable.)
I can understand how that unpleasant prospect would be hard to stomach. It has been entirely foreseeable how vicious and dishonest the other side would be in that battle. Unable to refute the truth of their crimes, they will fight in every extra-legal, dishonest, and perhaps even violent way they can to avoid being defeated by the Rule of Law.
But unpleasant or not, that’s the fight that needs to be fought. If one does not uphold the Rule of Law in the face of the worst crimes in American history – and particularly when they are crimes to which the American people were witness -- one has forfeited the battle it is one’s duty to fight and win.
Bad arguments seem like evidence that something else is going on. And the “non-political” argument isn’t the only clue of that sort:
Another bad argument we’ve heard – to “explain” why Garland’s DOJ has gone after the foot-soldiers while steering clear of the more dangerous people at the top – has been this: We will build this case from the ground up. Like rolling up a mobster gang, going up the latter and getting cooperating witnesses who spill on those above them.
The ridiculousness of this argument, in this case, has been noted:
- It has been clear that the foot-soldiers being prosecuted in the hundreds would provide no “ladder” whatsoever into those major political actors who were really behind the attempt to overthrow the American constitutional order.
- And – as the January 6th Committee showed irrefutably -- there were plenty of points of entry already visible from the outset for the DOJ to investigate. That Committee in Congress showed that investigation would quickly uncover an abundance of evidence of a kind that would simply scream for the Department of Justice to assert the Rule of Law and get Trump and his many accomplices convicted of their crimes with all possible haste.
So this idea of working up a non-existent “ladder” looks again like just an excuse to avoid the vicious legal (and political) hand-to-hand combat that — unfortunately — American now needs in order to defend the Rule of Law (and the constitutional order).
An ugly fight, but it’s a Battle that Must Be Fought and Won. And there is no better battlefield to fight it than this: using the Force of Justice – with both Truth and the Law on our side -- to expose the crimes and other evils of the fascistic Force that continues to threaten the survival of American democracy.
Every American who is not in a disabling trance state can be shown – given the abundance of evidence -- the rightness of prosecuting the Trump/Republican crime power.
Already, the polls indicate that a clear majority of Americans are taking sides with those who are bringing the indictments and not the lying criminal who is getting indicted.
Majorities of Americans, the evidence from polls and recent elections suggests, can be won to the side of the Rule of Law. And the side of “No one is above the law.”
So fighting out this battle is a winner in the current nationwide struggle between Democracy and Fascism. This, indeed, can function as a kind of showdown to determine which set of forces will prevail.
Garland is eminently deserving of praise, as well as the criticisms over his shrinking from the battle.
Merrick Garland has done a great jobs of rebuilding the Department of Justice into what it’s supposed to be. I believe his commitment to the Rule of Law is probably more sincere than almost anyone who has been Attorney General. He has a moral passion about it.
And last autumn, Garland had evolved to the point where he handed the ball off to Jack Smith.
There are some fears that this year and a half of delay may prove costly. What if it results in the task remaining unfinished by the time Biden’s term ends after the 2024 election? Would victorious Trumpites succeed in allowing their criminal leader once again to get away with his crimes and misdemeanors?
Not impossible, but improbable. The evidence of this moment suggests that Trump – with his unshakeable knot of support in a multi-candidate, winner-take-all sequence of primaries -- will win the Republican nomination. And that the American majority will resoundingly reject Trump, giving Biden a more sweeping victory than in 2020.
So chances are that if the Battle Between Donald Trump and the Rule of Law is delayed long enough to get past the next Inauguration Day, that battle will continue until Trump – and the fascistic force that has swallowed that toxic leader and seems unable to disgorge him – have been defeated.