Like Hamlet, Merrick Garland has a reputation for agonising over whether and when to strike. The pressure on America’s attorney general to charge Donald Trump for obstruction of Congress and even sedition has been mounting since the then president tried to reverse his election defeat on January 6th, 2021.
Unlike Hamlet, Garland cannot soliloquise his deepest thoughts. Yet last week, the inscrutable ex-judge came close to confirming reports that the US Department of Justice is indeed conducting a criminal investigation into Trump. “No person is above the law in this country,” Garland said. “I cannot say it more clearly than that.”
Garland’s responsibility is hard to overstate. No US president, current or former, has ever been tried for a federal crime, still less convicted. Richard Nixon, who resigned rather than face impeachment, was swiftly pardoned by Gerald Ford, his successor. Even if Nixon had been prosecuted, it would not compare with a trial of Trump today.
Unlike Nixon, Trump is eligible to run again and shows every sign of doing so. To borrow a Trumpism, putting the possible next president in the dock in the build-up to an election would be “unpresidented”. It would also risk civil strife. Though Trump’s grip over the Republican party has arguably loosened in recent months, he retains the devotion of millions of Americans, many of them armed.
Against that, Garland must weigh the potentially huge costs of forbearance. For two months, the US public has been treated to the most compelling congressional hearings since the 1974 Watergate investigations that felled Nixon. Fronted mostly by Liz Cheney, the Republican congresswoman, television viewers have heard Trump-incriminating testimony from a potent roster of former White House staff, Trump lawyers, Republican officials and even members of the former president’s family. The House committee is largely Democratic, but their witnesses have been almost exclusively Republican.
The hearings have had little impact on US public opinion. Indeed, Joe Biden’s dismal approval ratings have plumbed new depths since they began. Most voters are preoccupied with economic anxieties. Yet the evidence amassed by the committee has intensified the spotlight on Garland’s justice department – its primary intended audience.
According to The Washington Post, the Department of Justice has submitted several former Trump officials to grand jury questioning, including Jeffrey Clark, a former senior DoJ lawyer, whose Virginia home was raided by law enforcement last month. Clark, who is tipped to be Trump’s attorney general if he wins in 2024, was ejected at dawn in his pyjamas while his house was turned upside down. Clark was the one DoJ official who was willing to back fake slates of electors at Trump’s behest. To put it mildly, such raids are not associated with small fish.
Could Garland be readying an indictment or a series of them that would put all previous US trials into the shade? The chances have risen sharply over the past week. Federal prosecutors now possess a voluminous trove of private communications, including the seized mobile phones and laptops of Mark Meadows, Trump’s former chief of staff, who refused to submit to the House committee’s subpoena; John Eastman, the lawyer who devised Trump’s botched plan to pressure Mike Pence, his vice-president, to overturn the electoral college result; Rudy Giuliani, Trump’s private lawyer and former New York mayor; and Sidney Powell, who peddled the bizarre theory that Venezuela rigged the election via servers in Germany. In a defamation suit by Dominion Voting Systems, Powell’s defence was that “no reasonable person” could conclude she was telling the truth.
Each of these seizures required a judge’s green light. None of these figures is likely to be a primary target. Among others, Eastman, who was the chief architect of the election subversion plot, has admitted under oath that his plan was unconstitutional and that Trump was told that it was. This clears the high judicial bar for proving a defendant not only broke the law but knew that he was doing so. That is not to mention allegations of witness intimidation.
Yet the common sense reading of Trump’s criminal intent is no guarantee a jury of US citizens would see it the same way. To a lay observer, Trump not only incited the January 6th mob to storm the Capitol in its worst assault since the British burnt Washington in 1814; he also plotted against the US constitution. The notional penalty for sedition under the US code is death. It is little wonder that Garland would want to be super-confident of a conviction before he filed any indictments. Even for the non-capital charges of obstruction of Congress and defrauding the United States, a Trump charge sheet would be seismic. As the American philosopher Ralph Waldo Emerson said: “When you strike at a king, you must kill him.”
The evaluation Garland must ultimately make is inherently political as well as legal. The impact on US stability would be integral. Which means that it may not be Garland’s decision to make. Any indictment of a former president would need the go-ahead from Biden, Garland’s boss, who could conclude it is too big a risk. Then again, it would also be highly dangerous to walk away. To prosecute or not to prosecute? That is increasingly the question. – Copyright The Financial Times Limited 2022