The Merrick Garland Problem

As Judge Tanya Chutkan begins her effort to decipher what immunity from prosecution President Trump might enjoy, it is a moment to pause to address what could be called the Merrick Garland Problem. It is the sense, shared by millions of Americans, that the pursuit of Trump by the Department of Justice has become a political campaign. We can’t help but believe that the problem begins with the attorney general.It was, after all, General Garland who appointed Jack Smith as special counsel and it was Mr. Garland who pointedly waited to unleash a prosecutor until two days after Trump announced that he would stand for a second term. Mr. Garland tries to palm off on a noble public the idea that the timing of the appointment of Mr. Smith was only coincidental. Mr. Garland, in any event, has come into focus as a figure in this story. It was Mr. Garland, after all, who hired Mr. Smith from The Hague, bypassing the rigors of Senate confirmation. He was certain that the law allowed him to set the prosecutor on Trump, across two jurisdictions. Judge Aileen Cannon came to disagree, finding that Mr. Smith’s appointment was unconstitutional and dismissing the charges he brought against the 45th president and two others. It was a stunning ruling. Mr. Smith has appealed.The attorney general who was rejected for the Supreme Court has grown remarkably defensive on this head. He took to NBC to castigate Judge Cannon, a jurist of recent vintage, by declaring that for “more than 20 years I was a federal judge. Do I look like somebody who would make that basic mistake about the law? I don’t think so.” He shared that the Justice Department’s law library, where the interview transpired, was his “favorite” room.It could be that Mr. Garland’s intended audience was not Judge Cannon, who has already rendered her decision, but Judge Chutkan, at the District of Columbia, who presides over the January 6 case that the Supreme Court last month returned to her courtroom. She is tasked with implementing the Nine’s ruling that unofficial ones have no immunity but that most presidential acts are presumptively immune and some are absolutely immune. Before immunity could be adduced, Judge Chutkan on Saturday denied Trump’s request that she dismiss as “vindictive and selective” the case against him. The 45th president’s argument relies in large part on a story in the Times, where President Biden is quoted as opining that he wished Mr. Garland would act “more like a prosecutor willing to take decisive action” over January 6 — the case that is now before Judge Chutkan. Mr. Garland is quoted by the Times as saying that he and his team felt only the pressure “‘to do the right thing’ which meant that they ‘follow the facts and the law wherever they may lead.’” Judge Chutkan credits that account, at least at this stage of the litigation, where Trump faces a high burden to get the case thrown out before it is staged before a jury. He argued that Messrs. Biden and Garland are motivated by a desire to block him from the White House. When Mr. Garland appointed Mr. Smith, he trumpeted it as indicative of the DOJ’s “commitment to both independence and accountability in particularly sensitive matters.” Now it appears that Mr. Garland has been pulled into the centerstage of the Trump trials, alleged independence of the special counsel notwithstanding. That is the kind of political accountability the Framers relied on when they vested the president with all of the “executive Power.”Which brings us to the “red flag of vindictiveness.” That’s Judge Chutkan’s phrase to describe President Trump’s charge that the prosecution had become vindictive. If the judge had discerned even a smidgen of such vindictiveness, she would have been obligated to grant Trump’s request for a dismissal. Trump’s burden in finding the red flag is no higher, though, than Messrs. Smith’s and Garland’s in trying to prove that the 45th president is not immune.

The Merrick Garland Problem

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