Some time in the next five days, Merrick Garland will step down as the nation’s eighty-sixth attorney general, bringing to a close one of the most distinguished careers in public service in the last century.
But the accounts of his departure will likely include widespread criticism that he slow-walked the prosecution of Donald Trump. Critics allege that had he moved more quickly, Trump might have been held accountable for his misdeeds and the recent election might even have turned out differently.
The charge of
foot-dragging has become a meme. Elie
Honig, writing in New York magazine, was particularly
cocksure: “The debate about whether Garland took too long to charge the
Trump cases—or to appoint a Special Counsel to get the job done—is over.
Exhibit A: there’s not going to be a federal trial
before the 2024 election. End of story.”
But the charge is a bum rap.
The record demonstrates that Garland made investigating Trump a top priority, even as he also focused on restoring integrity to the Justice Department. The investigation was extraordinarily complicated and slowed by unusual and unpredictable obstacles, including the Supreme Court’s lawless immunity ruling. Moreover, events entirely outside of Garland’s control ensured that Trump would not have been held accountable before the election. Finally, Garland’s efforts, among others, made Trump’s criminality more than clear to the voters, but they nevertheless were content to reelect a felon and serial sexual offender.
The storyline that Garland let moss grow on the investigation—some say until Jack Smith came aboard, others until the work of the January 6 committee embarrassed the department—doesn’t gibe with even the publicly available evidence, which likely will be supplemented over time with details that we still don’t know.
Within days of being sworn in as attorney general on March 11, 2021, Garland gathered prosecutors from several divisions working on any aspect of the Trump investigations and instructed them to “follow the connective tissue upward”—i.e., to follow the money in pursuit of connections between the January 6 marauders and Team Trump. Garland charged the entire team to proceed without restrictions, even if it led to Trump. The money line of investigation didn’t bear fruit, but it made sense to pursue. More important for the Garland critics, it shows that Garland and his deputy, Lisa Monaco, were focused on the Trump trail from day one.
Critics also argue that Garland merely piggybacked on the January 6 committee’s work, implying that the panel’s efforts spurred the DOJ into action and that its investigative work was derivative. Not so. Documents cited in the January 6 indictment were not included in the committee’s report. Furthermore, as Marcy Wheeler has documented, before Smith came aboard, the Department obtained phones seized for the indictment—including those of Boris Epshteyn and Mike Roman.
In any case, the comparison between the committee and the DOJ is flawed. The committee’s role was to present a compelling narrative to the public, while the DOJ had to construct a case that would hold up legally and persuade a jury unanimously beyond a reasonable doubt. Given the stakes, any misstep in prosecuting Trump would have been catastrophic for the DOJ and the country.
A third critique is that Garland’s dedication to a by-the-book approach led him to work the case from the “bottom up,” focusing first on ground-level insurrectionists. He surely was focused on this enormous effort, the largest group investigation in DOJ history—but not to the exclusion of investigations of Trump’s immediate circle. For example, the Department executed a warrant at the apartment of Rudy Giuliani (later identified as “Co-Conspirator 1”) in April 2021, followed by an expedited privilege review. It similarly went after Trump lawyer Sidney Powell (Co-Conspirator 3), who couldn’t interpose lengthy executive privilege claims.
The report from Jack Smith that the Department made public early Tuesday confirms these points generally and in many particulars. Smith sets out the broad range of investigative measures that preceded his appointment in November 2022 and that “developed a thorough record of independently verified facts.” He also documents the time-consuming sealed privilege litigation that occurred beginning in the summer of 2022 and followed from other investigative work.
There’s more evidence of DOJ activity early in Garland’s tenure (I will be publishing a more detailed account in my Substack soon), but these points firmly rebut the widespread suggestion that Garland was indolent before Smith came aboard.
At the core of the attacks on Garland is an “if only” claim: If only Garland had focused earlier on the Trump prosecutions, Trump’s cases would have gone to trial earlier, he would have been convicted, and the nation would have seen Trump’s unfitness in terms that could not be ignored.
The claim just doesn’t hold water. Even if Garland had appointed Jack Smith on Garland’s first day in office—about 18 months before he did—there was no way that the federal prosecutions would have been completed before the election.
When the cases were dismissed, on November 25, the January 6 case had another trip up and down to the Supreme Court to deal with immunity issues before trial could be scheduled. The documents case was in the court of appeals, which was reviewing Judge Aileen Cannon’s dismissal. When it returned to Cannon, it had, conservatively, many more months before trial, particularly with classified documents issues and Cannon’s solicitude for Trump’s delay strategy. It is very hard to see either case’s resulting in a jury conviction in under 18 months.
But that’s only half of the process, and likely the less time-consuming half. A conviction is not final until it has completed appellate review, meaning in this case that the federal court of appeals has upheld the conviction and sentence, and the Supreme Court has denied cert. Until that time, a president can simply order the Department of Justice to drop the case, as Trump surely will as one of his first orders of business.
In any plausible scenario, we are well past the extra time that Garland critics think was lost. There is simply no tenable way that either of Trump’s cases would have been final before January 20, 2025.
That leaves some much more speculative charges that had the cases been brought sooner, they might at least have proceeded to conviction at the trial level. And in that event, the chain of speculation goes, the people’s judgment would have been altered by hearing the overwhelming evidence against Trump, and perhaps the fact of his losing.
But this lesser claim doesn’t pan out, either, and not just because it turns on an optimistic account of the calendar.
First, the nation did get to see Trump convicted and hear evidence of his perfidy in the New York case. True, the charges there were far less serious than in either federal case. Still, neither the evidence—which, after all, included some nasty sexual misconduct and hoodwinking of the voters—nor the fact of conviction seemed to move the needle in the view of Trump voters.
Second, prosecutors did publicly present a detailed and
voluminous account of the evidence against Trump in the January 6 case. Almost
everything in the Smith report, including everything about Trump, already had
been made public. Again, it provoked indifference, at least among most
Republicans.
Put it all together, and the odds are overwhelming that in no possible world is Trump convicted before the election. That’s a galling, infuriating, tragic fact, and perhaps an indictment of our system and the way rich people can game it; but it’s got little or nothing to do with Merrick Garland.
Finally, there’s the charge that Garland’s priorities were misplaced—that he devoted too much attention to restoring the integrity of the Department after four years of bruising assault on norms by Trump and his circle.
It’s true that Garland was focused on repairing the damaging effects of Trump’s assaults when he took office. But that focus didn’t require him to go light on Trump, and the available record suggests that he did not. And critics make a classic cognitive error if they judge Garland’s conduct early in his term through the prism of the unpredictable court delays that came later and, even more, Trump’s improbable political resurrection after January 6. In any event, when Trump did announce his candidacy, Garland immediately installed Smith.
It’s understandable that some of the frustration over Trump’s escape from justice has been displaced onto Garland. We put our hope in him to bring Trump down, and it didn’t happen. It’s easy to make him a scapegoat. But once you factor in all the other reasons for delay, it never was in the cards to bring Trump to justice before Election Day. And that was notwithstanding an overall diligent focus on the prospect from Garland’s first days in office.
Garland has previously opined that tough reproach goes with the territory, and it’s likely that he accepts the unjust reproaches with relative equanimity. Future generations will almost certainly view Garland more favorably than his critics do today. For now, he’ll have to rely on history to deliver a fair appraisal of his service.