The Buffaloing of Merrick Garland

The pressure is ratcheting up on Attorney General Garland, who will ultimately decide whether to charge President Trump in connection to the events of January 6, 2021. As the Department of Justice pursues lower-level cases and remains mum on the chief executive, criticism is being heard that Mr. Garland is more fumbling than focused. It is not the case that Mr. Garland’s justice department has been entirely senescent on the riot. More than 800 persons have been charged on counts ranging from trespassing to seditious conspiracy. More indictments are likely. Mr. Garland himself has promised that he and his lawyers are watching the proceedings on Capitol Hill closely. So far, though, restraint has been much in evidence. The DOJ has, at least so far, failed to charge the Trump White House chief of staff, Mark Meadows, and social director, Daniel Scavino, with contempt of Congress despite the committee’s urging that charges be filed to punish non-compliance with subpoenas. Congressman Bennie Thompson, the committee’s chairman, called that decision “puzzling.” The committee has continually urged the DOJ to pursue criminal charges against Mr. Trump, even as it has split on whether it will issue a formal recommendation to that effect. Congressman Jamie Raskin has said that charges were not his “principal interest.” Mr. Thompson agreed, saying “it’s not our job.”That’s not necessarily wrong. One of the bedrock constitutional prohibitions on Congress is passing bills of attainder, meaning declaring an individual guilty of criminal activity and assigning punishment without a trial. Enforcing federal law is assigned to the president, who must “take Care that the Laws be faithfully executed.”Whether Mr. Garland, who reports to the president, is doing his job has become a contentious question among Democrats. CNN cited “two dozen leading Democrats” who reckon that Mr. Garland “may have missed his moment to bring criminal charges against top Trump administration officials.” In respect of Mr. Garland’s approach, Representative Jim Clyburn told CNN that “none of it makes sense to me.” Representative Ruben Gallego added, “I’m just not seeing the urgency from the attorney general.” He accused Mr. Garland of thinking more about protecting the institution of the Department of Justice than “the institution of democracy.” Traditionally, the DOJ has adhered to a 60-day cutoff before elections to charge a candidate on the ballot, to avoid the appearance of political prosecution. That does not apply to Mr. Trump now, but it appears increasingly likely that it will in the future, as the Washington Post reports that the former president is now contemplating beginning his 2024 campaign in September.With the January 6 committee likely to finish its televised hearings next week and Mr. Trump seemingly aiming for an autumn declaration of his intent to once again seek the White House, the spotlight has begun to shine directly on Mr. Garland. One man who is not particularly impressed with what he has seen thus far is another prominent prosecutor, Andrew Weissman. Mr. Weissman served as a deputy to Robert Mueller during the latter’s tenure as a special prosecutor investigating Mr. Trump. He recently wrote an op-ed piece for the New York Times and gave an interview to Politico.The interview with Politico read almost like a job interview with a prosecutor who wants Mr. Garland’s job. Mr. Weissman took aim at what he sees as the DOJ’s modus operandi in this latest push against Mr. Trump, noting, “A myopic focus on the Jan. 6 riot is not the way to proceed.” He hoped that the committee hearings would “inspire the Justice Department to rethink its approach.”For Mr. Weissman, that rethinking necessitates the abandonment of a “bottom-up” approach, where a prosecutor starts with the small fish before moving on to the big game. He labels this tactic, common in prosecution of both financial crimes and organized crime, “the wrong approach for investigating the Jan. 6 insurrection.”Instead, Mr. Weissman advocates the paradigm of a “multiprong conspiracy — what prosecutors term a hub and spoke conspiracy — in which the Ellipse speech by President Trump and the Jan. 6 attack on the Capitol were just one ‘spoke’ of a grander scheme.” Such a tactic would begin not with the grunts marauding through the halls of Congress on that day, but in the West Wing.Mr. Weissman’s critique lands not only on the strategy Mr. Garland has elected to pursue, but also on his competency more broadly. He admits that “what I have seen in this inquiry is not typical behavior from the Justice Department” in investigations past. The Times reported that it was only after testimony by a one-time White House staffer, Cassidy Hutchinson, that DOJ lawyers “talked about the pressure that the testimony created to scrutinize Mr. Trump’s potential criminal culpability and whether he intended to break the law.” For those itching to prosecute, this belated turn to the president is a source of incredulity. Mr. Garland, however, is not the only prosecutor to appear to be nursing doubt over whether a prosecution would be just. During Mr. Trump’s time in office, Mr. Weissman’s then boss, Mr. Mueller, the special prosecutor and a former director of the FBI, declined to seek charges against the president. In New York City, District Attorney Alvin Bragg forbore seeking charges relating to the Trump Organization’s alleged overvaluation of assets.

The Buffaloing of Merrick Garland

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