When good men remain silent, the proverb says, evil may triumph. Few recent examples illustrate this more poignantly than the foot-dragging passivity of Attorney General Merrick Garland in the investigation of former President Donald Trump and his advisors in relation to the attack on the U.S. Capitol Building on January 6, 2021. There has never been any doubt about Trump’s participation in the only insurrection against an American government ever fomented by a sitting president. Trump planned, instigated, promoted, and enabled the insurrection, mobilized the illicit paramilitary groups and others, which, assembling with others at his command, were urged to join him in marching on the Capitol to prevent the lawful certification in office of his successor by Congress. Despite the weapons plainly visible among the crowd, the magnetic sensors to detect them were disabled at Trump’s instruction, opening the way for the violent occupation of the Capitol. Although Trump was physically restrained from the march by bodyguards, he watched the enfolding carnage on television from the White House, expressing his approval of it and refusing all pleas to intervene until reinforcements, summoned by others, arrived to secure the Capitol building. Not until Joe Biden’s inauguration as the forty-sixth president two weeks later was the immediate crisis past, but the threat to American democracy posed not only by Trump’s actions but by the Republican Senate majority to approve efforts to remove him from office or disqualify him from future occupation of it. That Trump’s own party had refused to disavow him despite the threat to the lives of its Congressional members and to a Vice President for whom a gallows had been erected in the Capitol yards, was the strongest evidence that the Trump insurrection had spread not only far outside the Capitol but within it as well. Should the peaceful transfer of power not be enforced as the bedrock principle of democratic government, democracy would remain imperiled in the land of its modern birth. Beyond that, the failure of the Republican Party to this day to reject its ousted and criminal leadery, thereby denying Biden his legal standing as president—has demonstrated that one of America’s two major political parties has effectively abandoned popular democracy. This is a crisis that is not only far from ending, but just beginning.
Biden faced a multitude of crises as he assumed office, including a still-raging pandemic bungled by Trump, a rapidly-collapsing economy, and, within a month of his inauguration, the largest military conflict in Europe since World War II. To deal with this, he needed, as far as possible, bipartisan cooperation. For this reason, and to restore popular confidence in government in general, he was inhibited from directly holding Trump to account. But he did possess an instrument for doing so at least at one remove from himself and by appropriate lawful process, namely the Department of Justice.
Two years have passed. If something has been going on at Justice, effectively, nothing has happened. If Donald Trump has been excused at a minimum of dereliction of duty for failing to respond to the Capitol assault while it was underway, his three hours of inaction in front of a television set pale now before the spectacle of a full electoral cycle having passed without any announcement, update, or comment from Merrick Garland about the legal responsibility for January 6 other than that he would follow the facts of the matter wherever they led. What those facts might be, and where they are leading, we haven’t had a clue. Meanwhile, Donald Trump remains very much at large in every sense of the word, still the nominal leader of what we continue to call a political party, and still, astonishingly, the odds-on favorite for renomination to the office he sought to destroy.
Oh, it isn’t that the Justice Department has been entirely asleep at the wheel. Garland has been assiduous in prosecuting the foot soldiers of the insurrection, those who actually broke into Congress and threatened to eliminate the entire first branch of government. But, as any prosecutor knows, you don’t start with the small fish to catch the big one; you go after his immediate subordinates, his own enablers, confederates, and co-conspirators. You go after the public servants who can rat out the boss, to use the lingo appropriate to the most corrupt, lawless, and seditious administration in American history. Instead, by clogging the courts with small fry who can offer nothing but apology and excuse, you do the exact opposite: you squander your efforts and resources with the prosecutorial result of giving shelter, not to say aid and comfort, to those who actually plotted to overthrow the American government from within, nearly succeeded, and may have better luck next time.
I’d like to ask Merrick Garland why this has been so. But he’d only respond with his mantra: He’ll follow the facts wherever they lead. But not, as it seems, before he has made every attempt to evade them.
It isn’t because no one else has been looking for them. The Senate Select Committee on January 6 labored mightily to produce the most critical and, insofar as its powers lay, comprehensive investigative report in Congressional history, complete with recommendations for indictment by the DOJ—its own proper work handed to it on a platter.
Merrick Garland didn’t say thanks for the million pages of testimony and documentation which his Department, with its vastly greater staff and subpoena powers, received with the Committee’s final report. A good deal of the Committee’s work had actually been done by former Justice Department staff, whose voluntary collaboration with it spoke volumes for their considered opinion of Garland’s actual willingness to follow his famous facts where they led.
Of course, Garland couldn’t fail to react to the Committee’s revelations. He immediately did his best to bury them by appointing a special counsel, Jack Smith, to start all over with the investigation that should have been begun from the beginning of his appointment. Special counsel investigations have usually gone down a rabbit hole, as connoisseurs of the Mueller Report on Trump’s former misdeeds will doubtless recall. In any case, the dubious necessity for Smith to set up an office, get up to speed, and conduct an investigation that, if undertaken at all, was long past due, was excused by Garland’s professed desire to appear scrupulously neutral. Contrast this, if you will, with his immediate appointment of a second special counsel to investigate Joe Biden’s private possession of state documents within days of public disclosure of their existence. Nor are the events unrelated, for Biden’s embarrassment, even if temporary, will make Trump’s prosecution all the more politically difficult.
I cannot say that good men and women have done nothing to avert evil in the case of Donald Trump. Many have: the police who risked their lives in defense of the Capitol; the members and staff of the January 6 Committee; the journalists, grand juries, and witnesses that, despite threats, are bringing the truth of the Trump conspiracy to light. I cannot say what Merrick Garland will do or not do, or how history will judge his discharge of responsibility in office. However, I can say that, whatever his reasons, the consequences of his conduct so far have done more than anyone else’s to keep Trump from the justice the country needs and he deserves.