Merrick Garland Has To Get It Right This Time

Merrick Garland’s Department of Justice failed to prosecute the Monster of Mar-a-Lago (aka a cancer on America) for obstruction of justice after he was removed from office, even though the Mueller report showed how guilty he was. The Attorney General is now getting a second chance. 

Neal Katyal, a former Acting Solicitor General of the United States, describes “the future criminal case against D____ T____”:

Congress and the Justice Department now find themselves in a complex dance, set to the tempo of the Jan. 6 hearings. The House select committee has already uncovered evidence suggesting that former President D____ T____ committed serious federal crimes.

Congress cannot bring criminal charges; the Justice Department must do so. And critics of the department are asking why it does not appear to be investigating these allegations. The hearings point to a potential answer: The committee is laying a foundation upon which prosecutors can build in a subsequent investigation.

And a subsequent investigation is virtually inevitable, given the evidence generated by the committee. How could Attorney General Merrick Garland ignore the facts the American people are now learning about?

…Mr. Garland has in the past been cagey about whether there is an investigation into the former president. Yet it’s unthinkable that the Justice Department should not pursue one.

A highly respected federal judge, David Carter, has already said in a published opinion that “the court finds it more likely than not that President T____ corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021.” Those are not easy words for the Justice Department to cast aside. If that doesn’t merit an investigation, it’s hard to think what should.

But we’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry. Witnesses before grand juries wind up talking to the media, for example, or those witnesses may file court actions to try to block the investigation. None of that appears to have happened.

Then again, this isn’t a normal investigation. Mr. Garland has known from the start that Congress is investigating the whole set of facts involving an attack on its own seat of government, and he may have made the conscious choice to hold off until he sees what Congress has developed.

Public hearings serve a subtle function. They permit the minds of the American people to acculturate to the facts and evidence. By laying out the facts that explain what T____ did, the Jan. 6 hearings can in advance help acclimate the public to why the Justice Department has to take criminal action against the former president. The hearings may afford the department a deeper and public explanation of its reasoning than an indictment out of the blue would offer. Public sentiment of this kind could help insulate the department against a claim that it is politically motivated. These hearings may prove to be a bridge between the Justice Department and the public….

What would criminal charges against D____ T____ look like? Obstruction of an official proceeding is a serious offense that requires the prosecution to show that a defendant obstructed, or attempted to obstruct, an official proceeding and that the defendant did so corruptly. The official proceeding part of this is clear — by law, on Jan. 6, Congress and the vice president must certify the votes. There appears to have been an orchestrated plot by some to try to interfere with that certification — the question is really whether the former president was part of that plot. The committee has presented evidence suggesting that Mr. T____, along with the lawyer John Eastman, and perhaps others such as the White House chief of staff, Mark Meadows, and Jeffrey Clark, a former Justice Department official, attempted to interfere with the election certification on Jan. 6. Before the hearings, it was thought that Mr. T____’s defense against this charge is that he genuinely believed that he had won the election and wasn’t acting “corruptly.”

The testimony in last week’s hearing cast immense doubt on that claim. Mr. T____’s close ally, former Attorney General William Barr, testified that he told the president that arguments claiming he had won the election were “bullshit.” Mr. T____’s daughter Ivanka testified that she believed Mr. Barr. Mr. T____s own election data people told him the same. Mr. T____ might try to claim he still believed the nonsense, but such an argument would be difficult to make given the array of people who told him in no uncertain terms that he had lost. Mr. T____ persisted, despite the warnings, to try to interfere with the lawful transfer of power. This looks very much like an attempt to obstruct an official proceeding.

The Justice Department could also bring the charge of “conspiracy to defraud the United States.” A charge of conspiracy requires proof that two or more people agreed to defraud the country. A key feature of conspiracy charges is that the plot need not succeed — charges are tethered to the agreement to do something illegal, not to actually pull it off. Prosecutors need not wait until the bomb goes off (or in this case, until the election results are wrongfully thrown out) before bringing charges.

Here, Mr. T____ faces yet another problem: Even if we were to ignore Mr. Barr and others, and accept that Mr. T____ believed he had won the election, courts have ruled that a genuine but mistaken belief is not enough to defeat a conspiracy charge. Oliver North, for example, famously claimed he did not conspire to violate a particular foreign affairs law because he believed that law to be unconstitutional, but the courts threw that claim out. The law does not work that way, and it cannot work that way particularly when people who control the entire machinery of government advance such preposterous claims.

Finally, the Justice Department could bring seditious conspiracy charges. Such charges have already been used by the Justice Department against members of the Oath Keepers and the Proud Boys. This is one of the most serious charges in the federal criminal code, but it’s also the one that is the hardest for prosecutors to bring against Mr. T____.

The charge requires prosecutors to prove that two or more people agreed to use force to delay the execution of a law or to overthrow the government. Here, Mr. T____’s defense would be that while he may have wanted to delay certification of the election, he did not ever formally agree with someone else to use “force.” The communications uncovered by the committee, showing an agreement with Mr. Eastman and others, are not likely to reveal anything about force. As such, while the committee may call some of the invaders of the Capitol seditious conspirators, it is, under the present publicly known set of facts, unlikely to yield that criminal charge against the former president.

Mr. Garland has these charges to consider, and potentially others such as wire fraud, arising out of evidence the committee presented in the second hearing about Mr. Trump misleading his donors. Based on the evidence presented so far, it seems as if the most likely charges are obstruction of an official proceeding and conspiracy, and not seditious conspiracy.

The committee has done a masterful job of starting to present its case to the American people, who are, after all, the first audience for their argument. And it has done so at a time when inflation, war in Ukraine, reproductive rights, gun violence and climate change equally demand our attention.

But the only way we as Americans have control over the decisions of elected bodies and the president in each of these areas is through our votes. If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department….

What a Fool or Creep Believes

Back when there was a plague upon the nation (not the plague caused by the virus), the question whether the president was lying or merely mistaken was often discussed. Reputable journalists at reality-based news organizations didn’t want to say he was lying (30,000 times in four years) since maybe he believed all the nonsense he said. So, perhaps he wasn’t lying. It felt safer, less judgmental, to say he was merely saying things that weren’t true (30,000 times).

A very good reason to think he was lying his big boy pants off was that every “falsehood” he shared with us was self-serving. People who are merely confused occasionally say something that doesn’t make themselves look good. Not our former president. He never wavered from his fundamental message: “I’m a winner, not a loser”. He never deviated from the con man’s creed: “Never give a sucker (i.e. the rest of us) an even break”.

As the January 6th committee reviews the evidence, similar questions about this person’s state of mind are being asked. Did he really believe he won the election? Did he really intend to stop Congress from counting the electoral votes?

Josh Marshall of Talking Points Memo argues that trying to figure out what the creep believed is a waste of time:

For T____, there is just what he wants. He “believes” whatever will get him what he wants.

Does he somehow convince himself of this? Like some kind of willed delusion? Stop it. You’re sticking too much to your linear way of thinking about belief. He hasn’t “convinced” himself. Why would he need to and what would that mean? He just says whatever will get him what he wants. Full stop….

Trump doesn’t “believe” anything.

… It cannot be the case that someone can evade legal culpability for a crime by consistently claiming not to know things that are obviously true, that everyone around him says are true, that he has no basis for disbelieving…. Otherwise, it’s a “get out of jail free” card for literally any crime. Just say consistently that you believe Mr. X threatened your life and you’re entitled to murder him without any legal consequences.

As we know from actual trials, you can’t just “believe” anything…. Your belief has to be reasonable….

We don’t need to go down the rabbit hole of the inner workings of [his] mind. That’s his problem. Not ours. As long as we do, we’re chasing a figment where there is only one possible witness: him. That’s silly.

The mob boss who says he’s never been a member of the mob isn’t confused. He’s lying because he doesn’t want to go to prison. That’s obvious. Just as this case is obvious.

One correction I’d make: not “everyone around him” was saying he lost. Rudy Giuliani and other sleazeballs were telling him the opposite. I hope that doesn’t make any difference when he’s prosecuted.

If you want more on this topic, two well-known lawyers who’ve worked for the government wrote an article for Salon about T____’s “criminal intent”:

As apologists prepare to defend his conduct, it is important to realize how shallow their defense will be. It is laughable to suggest that T____ genuinely believed he had won the 2020 election. We already know that experts and advisers told him the election results were legitimate. He heard this from his campaign advisers, Department of Justice lawyers, high-level officials in his own Department of Homeland Security and Republican elected officials [and at least 60 judges!]. T____ knew he had lost a free and fair election, but he wanted to remain in power anyway….

The committee’s work will be helpful, providing key evidence about … what T____ and others were saying and doing in public and what they were admitting in private.

[There is also] a foundation for showing T____’s corrupt intent: his long-established pattern of crying “fraud” to undermine results he didn’t like.

After T____ lost the 2016 Iowa caucuses to Ted Cruz, he cried fraud and demanded a do-over. He did the same thing in the general election after losing the popular vote to Hillary Clinton, despite winning the Electoral College… Throughout 2020, he made a series of statements along these lines … showing that even before the first vote was cast, he had no intention of accepting election results he didn’t like….

Even if T____ could somehow convince prosecutors and a jury that he really believed he had won — despite all the evidence to the contrary —  that would not have permitted him to use dishonest means to stay in power. His legal adviser, John Eastman, made clear that the scheme he and T____ tried to execute to keep T____ in power required breaking the law. You can’t keep power illegally even if you believe you really won an election. But prosecutors won’t need to reach this point, since the evidence is so strong that T____ and those around him knew he lost.