The wreckage Merrick Garland leaves behind
His failures left American democracy ripe for the picking.
✍️ Public Notice is possible thanks to paid subscribers. If you aren’t one, please click the button below to sign up and support our independent journalism. ✍️
It has often been said that Donald Trump was running for president to keep himself out of prison. Mission accomplished.
But the fact that Trump wasn’t behind bars long ago, that he didn’t suffer any consequences for his criming and now likely never will, can be laid squarely at the feet of one man: Attorney General Merrick Garland. Garland dragged his feet on prosecuting Trump for election interference and pilfering classified documents, making it easy for him to run out the clock.
Coming in on the heels of a literal insurrection, Garland was a bad fit for his job from the jump. He made clear early on that he didn’t see addressing issues from the Trump era as a priority, declaring that he would not look backward. Garland is an institutionalist, leading him to see his real job as protecting the Department of Justice rather than imposing any consequences on Bill Barr and others who turned the DOJ into a corrupt playground.
Someone who saw the abstract notion of an institution as more important than actual people and actual wrongdoing was never going to be the person who aggressively pursued an ex-president whose crimes were always in full view, which was what the country desperately needed back in 2021.
Bringing a knife to a gunfight
Rather than moving quickly to prosecute people — including Trump — for January 6, Garland’s first moves were to take actions that actually favored Trump, all in the name of protecting the institution.
In May 2021, the DOJ went to court to block the release of most of a Bill Barr memo that might have revealed how hard Barr worked to avoid charging Trump with obstruction of justice after the Mueller report. There, Garland was continuing work that had begun under Trump. But while it made sense that Barr would want to block the release of information revealing his role in helping Trump, it made no sense for Garland to want the same. The country had both a right and a need to learn everything possible about what happened during the first Trump presidency and led to a spasm of treasonous violence. That’s far more important than getting a generally favorable ruling on the DOJ’s right to sit on memos.
Garland also moved quickly to defend Trump against defamation claims by E. Jean Carroll, brought after Trump claimed she made up her accusation of sexual assault to sell books. The DOJ filed a brief substituting the government as the defendant for Trump so it could argue that Trump’s defamation of Carroll was done in the scope of his employment as president, which would likely have resulted in the case getting dismissed. As with the Barr memo, Garland decided it was more important to preserve the DOJ’s general ability to protect federal officials from defamation claims than to acknowledge the unprecedented nature of Trump’s behavior and let him suffer the consequences he clearly deserved.
Taken in a vacuum, neither of these actions would be quite so galling. In both instances, Garland was generally trying to maximize the DOJ’s power, which isn’t necessarily awful. But what is galling is that he took these two steps with such swiftness, only a few months after being confirmed, while not showing nearly the same concern to address Trump’s crimes.
Fairness to the point of absurdity
Garland’s desire to always appear evenhanded is also what led to the ridiculously aggressive pursuit of Hunter Biden, naming a special counsel and ultimately successfully prosecuting the president’s son for tax evasion and lying on a federal form to obtain a gun.
And don’t forget how swiftly Garland appointed a special counsel to investigate President Biden’s retention of classified material. In early November 2022, the White House voluntarily disclosed that some classified documents had been found at Biden’s think tank. The FBI opened an investigation five days later, and Garland raced to name a special counsel, appointing Robert Hur in January 2023. Hur was a Trump appointee, serving as United States Attorney for the District of Maryland from 2018 to 2021, and he demonstrated his hackishness by releasing a report in February of this year that did grave political damage to Biden by gratuitously describing him as an “elderly man with a poor memory.”
While Garland couldn’t move fast enough to protect the DOJ and to aggressively pursue the Biden family to show his evenhandedness, he didn’t get around to naming Jack Smith as a special prosecutor until November 2022, nearly two years after the insurrection. By that time, it was likely already too late. This is true even if Smith had not run into unexpected obstacles, such as Trump winning over the Supreme Court with an absurd argument that he was basically wholly immune from criminal charges.
And then there was Judge Aileen Cannon slow-walking the classified documents case and ultimately buying the equally flimsy argument that Jack Smith was not legally appointed and using it to throw out the charges. Both of those things lengthened Smith’s timeline considerably, but Garland knew full well that complex cases take a long time to wind through the federal system even when there isn’t an ex-president involved.
Garland was in charge of the prosecution of Timothy McVeigh, the Oklahoma City bomber and rightwing domestic terrorist. McVeigh was indicted on April 10, 1995, but the trial didn’t occur until mid-1997, with McVeigh being convicted on June 2, 1997, and sentenced to death on August 14, 1997. But McVeigh’s appeals stretched until December 2000.
To be fair to Garland, death penalty cases have a much more complex web of appeal options than what would be available to Trump. Nonetheless, Garland was undoubtedly aware that Trump would file numerous motions to get rid of the criminal cases against him and then immediately appeal any losses on those motions.
A note from Aaron: Working with brilliant contributors like Lisa requires resources. To support our work, hit the subscribe button and become a paid subscriber.
All those motions and appeals take time, which is why it was a bad idea to wait until November 2022 to appoint Smith, who then had to convene a grand jury to consider criminal charges over Trump’s willful retention of classified documents and his lies to the FBI about it. Smith didn’t issue an indictment in that case until June 2023. Smith had to convene a separate grand jury for charges related to the insurrection, so the DOJ didn’t indict Trump on those charges until August 2023.
This left Smith overseeing two incredibly complex cases against a defendant with nearly limitless resources, given that Trump could keep tapping political action committees for his legal bills, shifting the cost to his campaign donors and the RNC. By March 2024, Trump had racked up $100 million in legal fees, and while he kept draining the coffers of various PACs, donors were always eager to replenish those funds. Therefore, Trump could file as many frivolous motions as he wanted and run out the clock without taking any money out of his pocket. Smith never honestly had a chance that these cases would wrap up before Election Day.
Garland’s foot-dragging on naming Smith is precisely what allowed Trump to run out the clock on his federal criminal charges, setting the stage for a presidential run that culminated Tuesday with his shockingly thorough defeat of Vice President Kamala Harris.
History’s judgment will be harsh
Garland’s legacy could have been to provide transparency and, frankly, healing to a country that watched a president lead an insurrection and try to stop the peaceful transfer of power. Garland’s legacy could have been overseeing a truth and reconciliation commission to hold accountable every person in Trump’s orbit who helped him interfere with the election and march on the Capitol.
Garland’s legacy could have been showing that the DOJ was committed to repairing all the things Trump broke. Instead, his legacy is that of ineffectiveness, of dithering, and of not understanding that when Trump blew through all the guardrails of democracy, the DOJ needed to be a part of repairing and strengthening them.
None of that happened, and now that Trump won, the federal criminal cases are dead in the water, with Smith likely winding them down before Trump takes office. There’s no point in continuing to pursue the charges, given the rule that sitting presidents cannot be indicted or prosecuted. And even if the cases proceeded, Trump has already floated the idea of pardoning himself.
Garland’s protection of the DOJ did nothing but preserve that institution long enough for Trump to return to power and weaponize it against political opponents. It was a profound failure that our democracy will be lucky to recover from.
That’s it for this week
We’ll be back with more Monday. Your support is appreciated, especially during these tough times. If you aren’t already a paid subscriber, click below to become one.
Thanks for reading, and have a good weekend. We deserve it after the week we just endured.
Aaron (actually, Lisa) a part of me hates to acknowledge the truth in your piece. But the bottom line is that your thoughts are remarkably accurate and highly relevant.
I’m an attorney and I worked on the first part that you wrote about—the legal fight to have the DOJ release Bill Barr’s memo. I wrote an amicus brief opposing the DOJ’s efforts. I did that because I read the declarations (under oath) and the briefing of DOJ employees under Garland. They were egregiously deceptive. They even outright lied to judges to cover up evidence that Bill Barr had lied to Congress.
I’ve also worked opposite the DOJ (under Barr and under Garland) in multiple other cases in which DOJ attorneys were guilty of the same or similar conduct. Lying about evidence and knowingly violating federal law is all too common among DOJ attorneys. It is so common that it even undermines how MANY federal judges purport to fulfill their duties to the American public as public servants in FOIA cases.
All too often, DOJ attorneys lie in FOIA cases to cover up evidence of government employee misconduct. I have seen multiple federal judges lie, knowingly violate federal laws, and violate our Constitution to help cover up evidence of DOJ attorneys’ misconduct.
I have seen such egregious misconduct by at least two federal judges who were high-level DOJ attorneys (Judge Rudolph Contreras in DC and Judge Beth Phillips in the Western District of Missouri (Kansas City)). I’ve seen a lot of judges subsequently lie and knowingly violate federal laws and our Constitution to help cover up evidence of those two judges (and other judges) lying and knowingly violating federal law--to help cover up evidence that DOJ attorneys lied and illegally concealed evidence.
Regarding the DOJ “prosecution” of Trump, I think you’re also right. We’ve all heard of “show trials” in the past. It seems the DOJ “prosecution” of Trump was just another show trial of a different sort. It was a show for us, the American public, to create the appearance of a prosecution without any real prospect of success.
The “Institutionalists” at the DOJ and on federal courts too often prevail in ensuring that so much of what we see is just a show—literally, at best, the mere appearance of propriety without the substance of justice.
This perfectly articulates Garland's blame. I don't believe he is corrupt, just protecting the Institutions as written here. When we needed swift and decisive justice. Now, the DOJ he worked so hard to protect will be turned into the very weapon used to destroy the rule of law. 💔