October 8, 2021 | Reading Time: 3 minutes
Merrick Garland thinks he’s being neutral in the face of Trump’s crimes. He’s wrong. He’s being complicit. Make him know it
We are not facing a “full-blown constitutional crisis.”
The Senate Judiciary Committee released Thursday the latest in its investigation into the January 6 insurrection. The report detailed the degree to which the former president tried to straw-boss the Department of Justice into taking the side of his lies. It recounts what happened on January 3 when Donald Trump demanded Jeffrey Rosen, the former acting attorney general, give credence to fraud allegations. Trump failed, but three days later came his attempted coup d’etat.
I like Dick Durbin. He’s the chair of the Senate Judiciary. He’s a good senator. But I think he and the other Senate Democrats are not seeing what the rest of us are seeing. Donald Trump was more of a crime boss than president. His presidency is a crime scene as wide as it is broad. It can practically be seen from space. (Yesterday’s findings are only the latest. More to come.) Yet Durbin and the Senate Democrats still insist on swaddling Trump’s crimes in gauzy rhetoric. It not only veils who did what to whom. It’s veiled what must be done to whom. After the report’s release, Durbin said this is “a full-blown constitutional crisis.”
I understand why some oppose prosecuting a former president. They fear doing so will foment even more distrust of institutions than we already have. But it’s the reverse that’s true.
Again, I like Durbin, but he’s wrong. If Trump were still president, it’d be plausible to assert that we’re facing a constitutional crisis. Many said the same during Trump’s one term. (I did, too.) But the former president is now a private citizen who committed the highest of crimes. (A House panel released documents today showing Trump’s luxury hotel in Washington took in millions from foreign governments, despite ultimately losing money. That’s what you could call bribery.)
Therefore, we are not facing “a constitutional crisis” unless we’re talking about a crisis of internal fortitude of a political party, the Democrats, and an administration, run by Democrats, that fear doing what’s right. Fear is the predicate to Durbin’s “strong words.” Howling about a “constitutional crisis” is starting to sound like a dodge.
The United States Attorney General has the motive, the means and the opportunity to set in motion a criminal investigation into the January 6 insurrection and the tireless prosecution of its leaders, including Trump. He has the power and authority to appoint a new special counsel. All that’s missing is the will. But let’s be clear about why.
It isn’t, as Merrick Garland and his champions have said, because of some kind of tradition prohibiting the Department of Justice from getting involved in partisan politics. There is no such tradition. To be more precise, there is no such tradition that is not regularly broken when politically convenient to. (Former FBI Director James Comey’s eleventh-hour intervention into the 2016 election, reporting on Hillary Clinton’s email server, is a case in point.) When Garland appeals to “tradition,” he’s rationalizing his way out of doing something hard.
Here’s the tip jar!
But why? Shouldn’t voters decide? If Trump is the Republican Party’s next nominee, which seems likely so far, then shouldn’t it be the American people who pass ultimate judgment? I strenuously disagree. First, because the people have already done their part. That’s what 2020 was about. An incumbent got kicked out of office, something that has rarely happened in American history, because the American people understood a crime boss can’t stay as the leader of the country. And what did he do in reaction? He affirmed their decision by planning, organizing, executing and leading a failed coup d’etat on January 6.
The court of public opinion was central to kicking him out. It had to be. Trump and his minions had control of the machinery of justice. Former US Attorney General Barr minimized and suppressed knowledge of Trump’s crimes in all ways all the way up to and including lawlessness. (Remember how Barr sabotaged the Mueller report.) He otherwise enabled Trump’s corruption. Institutions were powerless to remove him. (Remember how the GOP acquitted him the first time.) Our last best hope was the American people voting him out.
The court of public opinion is exhausted. What we need is for the courts of law to start doing their part again. Instead, the Democrats are acting like institutions are powerless again, as if they are not the party controlling them. I understand why some oppose prosecuting a former president. They fear doing so will foment even more distrust of institutions than we already have. But it’s the reverse that’s true. The more the Democrats fear using the power they have for the purpose of administering justice, the more Americans will distrust institutions.
Why? Because why trust institutions, especially the institutions dedicated to the rule of law, when it’s so obvious that some people really are so obviously above the law. As long as the Democrats don’t pressure Garland, and as long as Garland twiddles his thumbs, that collective sloth proves that some people are above the law. Just as laws are meaningless without people to enforce them, principles are meaningless without people putting them into practice. Someone is going to be above the law when other people are afraid to uphold it.
Garland thinks he’s being neutral. No, he’s being complicit.
And we the people should make him know it.
John Stoehr is the editor of the Editorial Board. He writes the daily edition open and available to all. Find him @johnastoehr.