The great guessing game in Washington about Merrick Garland has been whether he’ll prosecute Donald Trump. That’s an excellent question, but its resolution is likely a bit down the road—certainly after the House select committee finishes its hearings on the January 6, 2021, attack on the U.S. Capitol.
In the meantime, here’s something Garland can do today that is, if anything, more open and shut than a Trump prosecution. Fire John Durham. Now.
The special prosecutor named by Bill Barr to “get to the bottom” of the “deep state” “conspiracy” didn’t just lose his case this week in the prosecution of Hillary Clinton aide Michael Sussman—he got his ass handed to him on a stick. The jury deliberated for a mere six hours, and based on the quotes from jurors that appeared in the news stories, it sounds like they may have spent four of those hours talking about the Stranger Things season four debut. “Personally, I don’t think it should have been prosecuted,” the jury forewoman said, noting the government “could have spent our time more wisely.” A second juror told The Washington Post that in the jury room, “Everyone pretty much saw it the same way.”
This is a major humiliation not just for Durham but for Barr, Trump, and everyone else who subscribed to the whole verkakte theory that it was Clinton, not Trump, who had the real Russia ties and that she—along with Barack Obama and this X-Files version of a “deep state” they tried to will into existence from their own fever dreams—engaged in a witch hunt against Trump that made Watergate look like Mr. McAllister stealing that high school election from Tracy Flick. Remember Trump tweeting, with zero evidence, that Obama was spying on his campaign?
That tweet set off an endless round of madness on the right, contending that it was really the Democrats who cheated in 2016. It would be laughable if it weren’t so evil. Trump has the conscience of … well, I was going to name some lower invertebrate, but that would be an insult to lower inverterbrates, since lower inverterbrates don’t lie without compunction specifically to distract people from their own corrupt behavior. Lower invertebrates also don’t typically get powerful figures to endlessly repeat their bogus claims: I saw a clip this morning of Jim Jordan scowling that Obama had spied on Trump not only as candidate but as president.
Naturally, Jordan didn’t provide any information or evidence about how a former president might have managed to get the federal government to spy on a sitting president, but I’m sure he has an answer to that one. That’s the thing about conspiracy theorists who don’t deal in facts: Everything can always be explained by an even darker and deeper conspiracy yet to be plumbed. Just last week, the right dropped a brand new one about the school shooting in Uvalde, Texas, where Salvador Ramos was obviously hired by the left to mess up the NRA convention.
That’s the sort nonsense that gets repeated and retweeted on social media platforms. But in an actual court of law, where evidence matters, Durham could not prove that Sussman lied to the FBI about taking Trump-related information to the bureau. He said he acted alone. Durham’s prosecutors argued that he was acting on behalf of the Clinton campaign. In other words, as soon as this conspiracy theory came in contact with a court of law, poof! It all went up in smoke.
Barr first appointed Durham to look into these deep-state charges in May 2019. Then, in December 2020, just before he skedaddled out the door, Barr officially appointed him special prosecutor. It’s worth remembering these details: Barr’s been getting a little too much credit for being unwilling to help Trump steal the election. Let’s not forget his earlier instances of waging a corrupt battle against the malign forces of secularism as part of his holy war.
Anyway, the point is that an attorney general appointed Durham, and an attorney general can fire him. And the current attorney general should fire him immediately. Durham spent nearly $4 million in taxpayer money to get laughed out of court by this jury. The idea of him spending more of our time and money is offensive. (By comparison, Robert Mueller, the bête noire of the Trump administration, found more evidence of wrongdoing and created a revenue stream to offset taxpayer expenses.)
I still don’t know what Garland is going to do about Trump. If you put a gun to my head, I guess I’d still bet that he won’t pull that trigger. I worry he’s going to let himself be talked out of it because it would look too “political”; he came into office wanting to depoliticize the department. There is a suspicion about that that means he’s afraid to make a move that the right will instantly and vociferously attack as political.
In reality, depoliticizing the department means following wherever the law leads without fear of the politics involved. I don’t know where it leads in the Trump case; I obviously am not a lawyer and have not looked at all the evidence. Garland might just be keeping his cards very close to the vest. But it seems pretty clear that after this Sussman acquittal, the law—in this instance—is clearly leading toward not letting Durham continue this goose chase. Durham’s probe is the most deeply “political” investigation since Ken Starr’s.
The best way to achieve Garland’s stated goal of depoliticizing the DOJ, and restore faith in the work he’s doing on January 6, is for him to shut this down right now and take John Durham’s badge away from him. Garland’s defenders say he’s afraid of no one. This would be a great time to start showing it.