WATCHING THE PUBLIC HEARINGS of the January 6th Select Committee makes one wonder: Why is Trump not being prosecuted in spite of the various damaging testimonies given by witnesses? And by all accounts, why is Attorney General Merrick Garland hesitant to indict Trump for witness tampering and other serious crimes? And without Garland’s indictment, Trump will remain scot-free. That’s a lot of power held by one man, who was appointed Attorney General by President Joe Biden.
But Garland—who is facing increasing pressure to indict Trump over his alleged role in the January 6, 2021, Capitol riot—has so far refrained from directly addressing the possibility of prosecuting former President Donald Trump.
As the country’s chief law enforcement officer, Garland—who was once former President Barack Obama’s pick for a seat on the Supreme Court—has vowed to “follow the facts wherever they lead—in holding those behind the attack responsible.
Pressure on Garland
For some time now, Garland has faced pressure to indict Trump as revealed in the ongoing series of hearings from the House Select Committee investigating the riot. It has placed the spotlight on the Attorney General’s lack of official action against Trump.
Members of the January 6th Select Committee have been presenting findings, which showed a coordinated effort to overturn the 2020 presidential election results and prevent the transfer of power to President Joe Biden. Had Trump succeeded in overturning the election results, it would have resulted in a coup d’état. Garland pledged to follow evidence wherever it leads.
However, according to Press Secretary Karine Jean-Pierre, President Biden won’t pressure Garland to indict Trump. He’ll leave it up to the Department of Justice to decide whether or not to indict Trump on charges related to the January 6th insurrection.
Independent Department of Justice
“The Department of Justice (DOJ) is independent. The president chose Attorney General Garland because of his loyalty to the law and our Constitution, and to restore the independence and integrity of the Justice Department,” she said. “That’s exactly what the attorney general is doing, so we leave it up to the Department of Justice.”
The congressional hearings have once again questioned the DOJ’s lack of action against Trump into national debate. If Garland were to prosecute Trump, he would be the first former president to ever be prosecuted for criminal conduct.
It must be remembered that Garland’s role as Attorney General is not the same as when he was a judge. A judge is a public official whose duty it is to administer the law, especially by presiding over trials and rendering judgments. A judge is a person who decides the fate of someone or something that has been called into question.
A prosecutor or attorney general is a lawyer who decides whether to charge a person with a crime and tries to prove in court before a judge that the person is guilty.
Clearly, Garland seems to think that he’s still acting as a judge. He wants to hear all the arguments before he passes judgment. As attorney general, he prosecutes cases before the judge and acts as the cases progress.
Democrats want to indict Trump
Some of the same people who once considered Merrick Garland a martyr to Republican treachery—when he was bypassed for Supreme Court confirmation by the Senate—now consider him a disappointment, or worse, as attorney general.
What the Democrats want to do, most all: Indict former president Donald Trump. And rightly so. Trump had pressured Vice President Mike Pence to block congressional certification of Joe Biden’s victory in the 2020 presidential race. Trump engaged in this pressure campaign even though many people—federal judges, state officials and his own advisers—had indicated that he lost the election, the widespread fraud he kept invoking had not occurred. And the Constitution had demanded that Biden take office. There simply is no reason why Trump shouldn’t be indicted. He should never be allowed to run for office again.
With Garland’s apparent sympathetic feelings for Trump, there is a good chance that Garland would allow him to go free. First of all, Garland’s hesitance may be of his fear that an indictment would bring the MAGA right wing supporters of Trump to rise up in arms. Just imagine the same people—the Proud Boys, the Oath Keepers, and other pro-Trump right wing groups—who rioted at the Capitol coming back armed to the teeth. It would ensue in total chaos! It would spark a real—and bloody—insurrection. And it will spread nationwide.
Garland’s dilemma
Indeed. Garland has a serious dilemma: Indict Trump and he’d see a MAGA uprising. Free him and he’d ignite the ire of the people. It’s a no-win situation for him. But which would be more palatable for Garland. Trump’s one-time chief strategist Steve Bannon had warned Garland: “Indict Trump and we’ll impeach you!”
Garland could avoid getting involved directly by letting the January 6th Select Committee make the criminal referrals to the DOJ and the committee staff will turn over the evidence they have gathered. Thus, Garland would avoid being involved directly.
In such a referral, the committee might reference several statutes that the DOJ can use to prosecute Trump and others, which would include obstruction of an official proceeding, conspiracy, and seditious conspiracy.
The seditious conspiracy statute provides that “if two or more persons . . . conspire to overthrow, put down, or to destroy by force the Government of the United States. . . or by force to prevent, hinder, or delay the execution of any law of the United States, they can be fined and imprisoned for up to twenty years.”
Conspiracy is a powerful charge. And it looks like the January 6th Select Committee is closely examining the facts to see if they line up. The committee is exploring whether “Trump oversaw an unlawful conspiracy that involved coordination between the ‘political elements’ of the White House plan communicated to Republican lawmakers and extremist groups that stormed the Capitol.”
But proving the existence of a conspiracy can be difficult, as evidence of an agreement would need to be shown, though juries can draw inferences from behavior and testimony without a smoking gun. However difficult it might be, it’s doable.
Unafraid of Steve Bannon, Garland could then prosecute Trump based on the evidence gathered by the January 6th Select Committee. As the Attorney General, Garland would only provide the vehicle driven by the January 6th Select Committee, a clean and straightforward job.
At the end of the day, Garland would have achieved something that would satisfy his boss, President Biden, and the American people, preserve democracy, and prosecute Trump criminally.
(PerryDiaz@gmil.com)