American democracy is about to enter a stretch of Class V political rapids.
We learned this week via The Washington Post that the Department of Justice is investigating not just various members of Donald Trump’s inner circle for their scheming to thwart the legal transfer of power to Joe Biden, but is asking specific questions about Trump’s role. The DOJ must eventually make a decision about whether to bring criminal charges against the former president for his efforts to overturn the legitimate election results.
Attorney General Merrick Garland stressed in an NBC interview that the DOJ “will hold accountable anyone who was criminally responsible for attempting to interfere with the . . . legitimate, lawful transfer of power from one administration to the next.” The attorney general’s unspoken message was clear: up to and including Trump.
Prosecuting the former president would enrage his supporters, no matter the outcome. But the Department of Justice simply can’t ignore this kind of scheming against our democratic process. It must be vigorously investigated. And just as the Trumpist right will be livid if the former president is charged, the Democratic left will be furious if he’s not.
That puts Garland between a rock and a hard place.
Opinions vary about how easy it would be to convict Trump on criminal charges. Bill Weld, once the US attorney for Massachusetts and thereafter assistant attorney general for the DOJ’s criminal division under Ronald Reagan, thinks two criminal cases could be made against Trump.
“Under current US criminal law, Mr. Trump’s conduct around January 6, 2021, would appear to be fairly clearly a violation of 18 US Code section 371, Conspiracy against the United States (maximum penalty five years imprisonment), and also of 18 US Code section 2101, Incitement to Riot (maximum penalty five years imprisonment),” he emailed. In a subsequent phone conversation, Weld, who ran against Trump in the 2020 Republican primary season, said that if it were up to him, he’d bring a case. “It should be a relatively easy conviction, unless there is jury nullification,” he said in a follow-up interview.
But Richard Ben-Veniste, one of the lead prosecutors on the Watergate Special Prosecution Force, disagreed.
“With due deference to Bill Weld, a man I admire, these are not easy prosecutorial decisions,” he said. “They are complex, consequential, and have many moving pieces.”
One obvious question is whether Garland would bring lesser charges against Trump or decline to move forward if he doesn’t feel he could get a conviction on a major matter.
During his 2016 campaign and even his presidency, Trump called for the prosecution of Hillary Clinton, his 2016 opponent, as well as other Democrats. To their credit, his attorneys general largely refused. Over the last year or so, impatient Democrats have criticized Garland for not moving quickly or aggressively enough to investigate the skullduggery that emanated from the Trump White House after Trump’s loss.
Now, no matter what happens, hard-core Trump loyalists will not quickly, or perhaps ever, accept that he was involved in criminal scheming or action as president. However, it’s important for Americans in the middle to see this process as fair, even-handed, and above politics.
The proper stance for the president and other prominent Democrats is to stress that the DOJ must be independent and that Garland and his prosecutors should make their decisions based on fact, and without taking politics or political demands into account.
In that regard, reasonable people should feel reassured that this investigation is being supervised by a careful, credible, measured figure like Garland, who even in these polarized times was confirmed by a Senate vote of 70 to 30 as attorney general. That strong endorsement came even though his 2016 Supreme Court nomination had been blocked by Republicans determined to keep Barack Obama from filling the vacancy.
“In determining whether or not to recommend indictment, his job is not to make a political assessment as to whether it would be nice or not nice, or whether it would be politically correct or politically incorrect,” said Ben-Veniste. “His job is to assess whether there is evidence sufficient to convince a jury beyond a reasonable doubt that an individual has violated the criminal law.”
Garland’s history as a prosecutor shows him to be possessed of good judgment, a sense of realism, and a determination “to prosecute without fear or favor,” added the former Watergate prosecutor. “And I believe that is what he’ll do.”
In other words, rather than being too cautious or insufficiently aggressive, Garland, a former prosecutor who became a widely respected appeals court judge before rising to the role of the nation’s top law enforcement officer, is the perfect man for the difficult times and decisions ahead.