Living in a Merrick-ocracy
Now that the public part of the January 6 committee's investigation of the coup attempt is (most likely?) done, the big question is, what will criminal prosecutors do about it? Right now, that question comes down to the judgment of two people: Fulton County (Georgia) DA Fani Willis and Attorney General Merrick Garland.
Franklin Foer, a staff writer at The Atlantic, interviewed a bunch of Garland's friends, former clerks, and deputies, as well as Garland himself. He's concluded that federal charges for former President Donald Trump are "inevitable." I called up Foer to talk about it, and edited our conversation for length.
So you think that Merrick Garland is going to indict Donald Trump. What makes you say so?
Merrick Garland changed over the summer. First, he's been changed by the job. As attorney general, he's seen the threats to democracy. And I think he's become less of a consensus-minded hyper-institutionalist and more concerned with these existential threats. So I think he's become a bit more willing to engage in a confrontational approach with the anti-democratic forces in the country. Secondly, there's the Mar-a-Lago case, which is, I think, a fairly black-and-white one.
But is Merrick Garland no longer the incremental institutionalist we thought we knew? Is he a slash-and-burn prosecutor now?
I don't think so. While he may be more confrontational than he was 18 months ago, he is who he is. And he cares very much about institutions, including the DOJ. And I think he doesn't like to see its integrity being impugned by its opponents. He doesn't like to hear that its agents are planting evidence in people's summer beach homes. And so I think that his institutionalism has been one of the things that has brought him along in the Mar-a-Lago case.
We learned this week that Trump ordered a Mar-a-Lago employee to move boxes containing government documents that were later seized. What have you seen in the Mar-a-Lago case since the search that makes you think Garland has switched gears?
It's really so interesting, because this is the first time we've seen Garland and Trump going mano a mano. And Garland has been much feistier and aggressive than I think a lot of people credited him. It begins with the search itself, which is a very aggressive action. There was maybe a norm that you don't storm the house of former presidents that we've gone past. Then at the press conference afterward, Garland basically said, "I'm going to take credit for doing this. This was my decision, and we're gonna call out Trump's bullshit." Then came the filings, including the famous photo of documents on the floor. There's just not a lot of deference. There's almost a dismissiveness at times about the shoddy legal arguments that the Trump team is making. It's really treating Trump as if he's any other defendant making a bad case in court. So Garland has applied his dictum that no one is above the law, and he's backed it up with action.
How affected do you think Garland is by the attempt to entangle DOJ in the coup plot? The attempt to get DOJ to lie to the public about election results and investigations.
I think it's a big deal. But I think in his head these cases exist on separate tracks. The role of DOJ in the post-election coup is one case, January 6 and the rioting is a separate case. You have the false electors running in parallel and then you have Mar-a-Lago. And I really don't think that in his head he's intermingling these cases.
What do you see in the Jan. 6 prosecution universe that makes you think Garland is getting tough to a point that it might rise to Trump?
In my view, the January 6 prosecutions are much tougher for him. It will take more time to get to the point where he's ready to indict in that case at a higher level. And I don't think that's terribly unusual for a prosecutor to take their time in a public corruption case, especially when you're going after current and former elected officials. Those cases almost always go at a fairly plodding pace, and that's just the culture of DOJ.
So when does all this have to happen given that America is one big election cycle now and Trump is guaranteed to use a prosecution for political advantage?
I think by late spring of next year, but I'm not saying Merrick Garland necessarily would think about it in this sort of way. Garland may not care that his case doesn't come to fruition within this presidential term. He may just let the investigation plod ahead for however long until he has a strong case to prove.
Trump and his allies are promising violence and chaos if he's prosecuted. How do you think Garland weighs that as he thinks about the pros and cons of charging Trump?
I don't actually know that it goes into his calculus. I think that it's hard not to think about it because the threat is basically explicit at this point. Yes, there's discretion involved, especially at this level. But my instinct is that when he says nobody is above the law, he means it. The prospect of right-wing violence is real, but there's this other question, which is what happens to American democracy if you exempt somebody from the rule of law, or if you don't punish these blatant crimes because you're afraid of violence? My sense is he's not going to bend to the threat.
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