We fear Attorney General Merrick Garland isn’t taking Donald Trump’s insurgency seriously enough
During his nine months in office, Attorney General Merrick Garland did a lot to restore the integrity and fair application of the law to an agency that was misused for political reasons under its predecessor. But his place in history will be appreciated in light of the challenges he faced. And the primary test he and the rest of the government face is the threat to our democracy from those determined to destroy it.
Garland’s success depends on upholding the rule of law. This means deterring future coup plotters by holding insurgency leaders fully responsible for their attempt to overthrow the government. But he cannot do it without a solid criminal investigation of those at the top, from the people who planned, aided, or funded the Electoral College’s attempt to cancel the vote to those who organized or abetted the attack on the Electoral College. crowd against the Capitol. For starters, he could focus on Mark Meadows, Steve Bannon, Rudy Giuliani, John Eastman, and even Donald Trump – all of whom were involved, in one way or another, in the events leading up to the attack.
Almost a year after the insurgency, we still have not seen clear indicators that such an investigation is underway, raising the alarming possibility that this administration will never bring a complaint against those ultimately responsible for the insurgency. ‘attack.
While the Justice Department has laid charges against more than 700 people who participated in the violence, limiting the investigation to these infantrymen would be a grave mistake: as Joanne Freeman, a Yale historian, wrote this month. This about the insurgency: the belief that those in political power are responsible for their actions and that blatant violations will be dealt with – is the cornerstone of democracy. Without this there can be no trust in government, and without trust democratic governments have little power. “
The legal route to investigate the leaders of the attempted coup is clear. The penal code prohibits incitement to insurgency or “to bring aid or comfort” to those who do so, as well as conspiracy to “prevent, hinder or delay the execution of any state law. United “. The code also criminalizes obstructing official proceedings by corruption or depriving citizens of their constitutional right to vote.
Based only on what we know today from reporting and the constant flow of revelations from the House select committee investigating the attack, the Attorney General has a powerful justification for a strong and energetic investigation into the former. president and his entourage. As White House chief of staff, Mark Meadows has been intimately involved in efforts to overturn the elections. He visited Georgia last December, where he apparently laid the groundwork for the phone call in which the president pressured Georgian Secretary of State Brad Raffensperger to “find 11,780 voice “. Ohio Rep. Jim Jordan is said to have promoted a ploy to pressure Vice President Mike Pence to reject Joe Biden’s duly certified voters. And from their war room at the Willard Hotel, several members of the president’s entourage concocted the legal strategy to overturn the election results.
The president himself sat for three hours as his chief of staff was bombarded with messages from members of Congress and Fox News hosts begging him to ask Trump to quash the armed mob he had ignited. violent passion. This evidence alone may not be enough to convict the former president, but it is certainly enough to demand a criminal investigation.
And yet there is no sign, at least in media reports, that the Attorney General is building a case against these individuals – no interviews with senior administration officials, no reports of attempts to persuade infantrymen to leave. turn against the people who incited them to violence. At this point in the Russia investigation, Special Counsel Robert Mueller had indicted Paul Manafort and Rick Gates and obtained the cooperation of George Papadopoulos after accusing him of lying to the FBI. Media reported that the special counsel team had conducted or scheduled talks with Trump aides Stephen Miller and Bannon, as well as Attorney General Jeff Sessions.
Of course, there’s no way of knowing for sure if Garland’s Justice Department is investigating those responsible for the behind-closed-door attack. The policy of the Department of Justice does not allow the announcement of investigations, except in exceptional circumstances. Garland, unlike his predecessor, plays by the rules, keeping quiet about investigations until charges are laid.
But the first of the rioters to plead guilty began cooperating with the Justice Department in April. If prosecutors used their cooperation to investigate senior officials and agents responsible for the Capitol seat and our democracy, there would likely already be significant confirmation in the media.
The department may postpone the decision to launch a full-fledged investigation pending further work by the special House committee. It is even conceivable that the ministry will wait for the committee’s final report so that federal prosecutors can review documents, interviews and recommendations amassed by House investigators and can consider possible criminal referrals.
But such an approach would have a very high cost. In the prosecution area, interviews should take place as soon as possible after the events in question, in order to avoid both forgetting and coordinating witnesses to cover up the truth. A full Justice Department investigation of the leaders is now more urgent than ever.
It is also imperative that Trump be included on the list of those under investigation. The media have widely reported his role in numerous relevant events, and there is no compelling reason to exclude him.
First, it cannot claim constitutional immunity from prosecution. The Justice Department’s legal counsel’s office only recognized this immunity to sitting presidents, as a criminal trial would prevent them from carrying out their duties. Trump no longer has these duties to fulfill.
The ex-president’s exclusion is also not justified by the precedent President Gerald Ford set in pardoning Richard Nixon to help the country “heal” from Watergate. Even our proud tradition of failing to emulate the Banana Republics by allowing political victors to strike back against losers must give way in the wake of violence perpetrated to thwart the peaceful transition of power. Refusing to at least investigate those who are plotting to end democracy – and who remain engaged in efforts to do so – would be more than reckless.
Moreover, the state and local investigations underway in New York and Atlanta will never be able to provide the kind of accountability the nation clearly needs. The New York affair, which revolves around tax evasion, has nothing to do with the attack on our government. The Atlanta District Attorney appears to be investigating Trump’s now infamous appeal to Raffensperger. But that’s just one chapter of the wrongdoing that led to the attack on Capitol Hill.
Significantly, even if the Atlanta District Attorney is able to convict Meadows and Trump of interference in the Georgia election, they could still run again. Only condemning them for participating in an insurrection would permanently disqualify them from their duties under Article 3 of the 14th Amendment.
Some have expressed pessimism that the Justice Department would be able to convict Trump. His guilt would ultimately rest with a jury to decide, and some jurors might believe he was wrong in believing his own big lie and therefore really thought he was saving, rather than sabotaging, the election. But concerns about a conviction are no reason to withhold an investigation. On the contrary, a federal criminal investigation could reveal even more evidence and provide a more solid basis for deciding whether to charge.
To refuse to investigate outright would be outright appeasement, and appeasing bullies and criminals only encourages the same more. Without vigorous action to hold evildoers to account, we likely won’t resist what some retired generals see as a march to another insurgency in 2024 if Trump or some other demagogue loses.
Throughout his public life Garland has been a very principled public servant, keen to do the right thing. But only by holding the leaders of the Jan. 6 insurgency – all of them – to account can he secure the future and teach the next generation that no one is above the law. If he has not already done so, we implore the Attorney General to do this task.
Laurence H. Tribu is a University Professor Emeritus at Harvard Law School. Donald ayer was the United States’ attorney in the Reagan administration and deputy attorney general in the George HW Bush administration. Dennis aftergut is a former Deputy United States Attorney.
This article originally appeared in The New York Times.