*Throughout the week, readers will receive newsletters with 2-4 shorter stories of the type that I have written for some time. No promises about a weekly Sunday deep dive but they will appear from time to time. Yesterday, I started what is called a discussion thread. Discussion threads ideally start with a specific question. Yesterday, I asked, “Should Biden Fire Merrick Garland.?” My answer and argument lies below.
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This is not only inexcusable, it would otherwise be inconceivable:
[Acting Attorney-General Rosen’s aide] Donoghue’s notes describe Trump telling him and Rosen to “just say the election was corrupt [and] leave the rest to me” and Republican lawmakers. They also describe Rosen and Donoghue saying claims of election fraud did not appear to have merit.
Washington Post: August 21st, 2021
As most know (and I’ve written many times), the Department of Justice is within the executive branch and yet, by necessity, has more independence than all other cabinet-level departments combined. Until Trump - who didn’t honor a single tradition, no matter how important - it would be unthinkable for a president to speak to the Attorney General about any ongoing case or the FBI director about an ongoing investigation.
According to notes from the telephone call referenced above, Trump “asked” Rosen to sign a letter stating that DOJ had found “fraud” within the election, no specifics needed. The “request” came at a point when Trump loyalist Jeffery Clark, head of DOJ’s Civil Division, was putting near-constant pressure on Rosen, while Clark made his own calls to Georgia (carrying out Trump demands) in an attempt to get the legislature to convene a special session and, in effect, overrule the vote tabulated by the secretary of state.
Far better attorneys than me say the phone calls constitute an obvious crime, or at least probable cause to investigate (to say the least). This “obvious” crime occurred within the halls of the Department of Justice itself, perhaps in the very office or conference room in which Merrick Garland now sits. In other words, they could investigate the crime “from the office.”
Moreover, it was the Justice Department itself that hired Robert Mueller to investigate possible Russian connections to the Trump campaign. Whatever one wants to call the findings with respect to Russia (they were far more serious than reported), Mueller gift-wrapped ten obvious instances of obstruction of justice for prosecution once Trump left office. These crimes could be charged, today.
Obviously, all the above just touches on possible criminal activity in the Trump administration. The phone call to Georgia, the possible conflicts of interest, perhaps overbilling the Secret Service, pardons for-profit and the big one, his possible role in the January 6th insurrection… and yet, regarding serious FBI investigations and DOJ charges. we’ve heard exactly nothing. We have yet to see the headline: “FBI serves warrant on Mark Meadows seeking all electronic devices that…”
The subpoenas we’ve recently seen come from Congress and it is not Congress’s job to investigate and prosecute crimes. Congress does investigate national issues and investigates the executive branch as a separation of powers issue. Congress investigates anything it might want to write laws to prevent, perhaps things like insurrections. But this is not their primary calling and they are not prosecutors.
The eery silence emanating from the Department of Justice and its police department, the FBI, is the type required to ignore the law, pretend bad things never happened, “look forward, not back,” and the type required to bring down free, democratic republics. The Constitution is not self-sustaining, it takes monthly, sometimes daily, renewed commitment to execute.
It is true that the DOJ and FBI don’t exactly advertise their investigations. But compare what you know about Rudy to what you know about Trump and his closest confidants. We know that Rudy’s condo and apartment were raided and that all electronic devices were taken per the terms of a warrant. Whenever a public figure is involved, there are always signs. We have signs that the Manhattan D.A. might charge Trump. We have more indications that Georgia might prosecute Trump than we do from DOJ. Point made.
We cannot know what Biden has said to Garland. President Biden is likely especially reluctant to get involved with DOJ given the last administration’s abuses. And yet, Biden refuses to protect Trump from Congress’s investigation. Biden could have asserted executive privilege on behalf of Trump. He would’ve made his own life a lot easier if the GOP wins the House or Senate in 2022 because they’ll instantly start “investigations” and near-instantly impeach Biden. In such an atmosphere, Biden could continue to assert executive privilege. But Biden has opened the files for Congress. He wants Trump thoroughly investigated.
Having said that Presidents, other than Trump, do not get involved in cases or specific investigations, they most certainly do set the tone and priorities for DOJ. A president is expected to ask attorneys general to (for example) focus more upon drug arrests as a health issue and less on a criminal problem: “Please develop a more comprehensive system to offer medical assistance to defendants in exchange for dropping criminal charges,” would be an acceptable example of what a president might tell an attorney general.
Having established that presidents set the tone and priorities for any attorney general, Joe Biden had the right and the responsibility to tell Merrick Garland, “The last administration almost toppled democracy in this country. I want this department investigating everyone who enabled it, up to and including the former president. This can never be allowed to happen again.” That is a president demanding action on a nationwide issue, perhaps a nation-saving policy.
Did Joe Biden ever have that talk with Garland? It is unlikely. That would be a fairly controversial talk. But Joe Biden likely expected Garland to begin the investigations from day one. Again, Biden’s not protecting Trump from Congress, why would he protect him from DOJ?
We cannot know with certainty. but when Merrick Garland calls a press conference to announce DOJ is exploring all options to stop the Texas abortion ban (an important issue), and yet has not had a press conference regarding the Mueller obstruction of justice charges, it seems safe to assume that those announcements aren’t coming because no indictments are coming.
I desperately hope I’m wrong. I would love to eat a wonderful serving of crow with all the trimmings for Thanksgiving or Christmas this year. But we’re getting awfully close to a year from the election and again, nothing. At this point, the only prosecution we might expect from DOJ would be due to referrals from Congress or congressional testimony. It is not supposed to work that way.
Of course, there will be a political zoo-break if DOJ starts prosecuting former Trump officials. MAGAs will get violent. But they are violent anyway, that’s the problem!
If one simply starts with the lower staffers, the ones made to commit the most obvious crimes, and moved up the line, enablers will face a choice, go to prison, or give up the goods on the next guy up, the one who likely ordered the crime in the first place. If such a process played out, one would eventually reach levels where the accused has impeccable Trump loyalty and MAGA bona fides. When that person starts talking about what actually happened, a lot of politics will go out the window.
Even done perfectly, the process would enrage the “boogaloo bois” and their type. The potential for Oklahoma City type of violence is real, the same has been true since January. Moreover, we are now talking about fighting for the soul of a nation, the beating heart of democracy. One must accept the risks. The alternative is giving away your democratic republic to a bunch of loud-mouthed bullies.
Russia has elections and laws, too. They just don’t mean anything. Right now, the United States, especially the MAGA side is acting far more like Russia than the United States of America, a democratic republic, a nation of laws, a country where - as Lt. Col. Alexander Vindman said, “Right matters.”. The time to prove Vindman was right all along is now or never.
To the extent that Merrick Garland has made the determination that our actual laws don’t apply to those at the very top, his position puts the country’s entire future in danger and it is time for him to go. Indeed, it’s probably three to four months past time. This nation cannot afford another term like the last one and it cannot allow a Republican House to start its own investigations before we ever really investigated Trump. If the last administration goes unpunished, try grappling with what we might face just three years from now, led by a team believing themselves to be untouchable.
“Touching” upon what happened last time depends upon Garland and he’s unwilling. It is time to find someone who is. We need a prosecutor like Ted Lieu or Adam Schiff, Kamala Harris is busy. We had every right to expect Adam Schiff, or someone like him, as Attorney General. We never expected “nothing,” not when we deserve an investigation of “everything.”
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jmiciak@yahoo.com and on Twitter @JasonMiciak