I greatly respect Marcy Wheeler and I understand her desire to correct unfair criticisms about how the Department of Justice pursued the January 6th investigation. No one has covered this issue more closely than she has, and she knows the timeline inside and out. But there’s a certain point where you just have to look at the bottom line. Whatever else you might want to say about Attorney General Merrick Garland, he failed in his most important job, which was making sure that Donald Trump’s political career was over and his ability to threaten this country was finished.
Some might see that as a partisan point of view inappropriate for an Attorney General. But that depends on doing something Joe Biden is telling us not to do, which is forgetting about what actually happened on January 6, 2021. Donald Trump attempted a coup d’état.
He should have been arrested as soon as a grand jury could be seated. He could have even have been held in military detention, considering the extraordinary circumstances of his crimes, which were the most serious since the secession of the South in the lead-up to the Civil War. This process could have started before Garland was confirmed on March 10, 2021. But it certainly should have been Garland’s absolute top priority once he took his position.
In retrospect, it’s easy to see why the investigation could not be handled in the typical way of methodically building up a case from the bottom to the top, but rather as the gravest crime ever committed requiring an absolute hammerblow against anyone who stood in the way of swift justice.
Once the Senate Republicans refused to convict Trump in his second impeachment and disqualify him from future office, the number one goal had to be to take the narrative by the throat and never let up for a moment. It should have been treated as an act of treason possibly meriting a death sentence, and as an ongoing threat to the peace and stability of the country.
This is Biden’s failure, too. He wanted to unite the country and get back to normalcy. He wanted to restore faith in the Justice Department. Garland was hired to help with these goals. It was a mistake, and Biden knows that now.
In private, Biden has also said he should have picked someone other than Merrick Garland as attorney general, complaining about the Justice Department’s slowness under Garland in prosecuting Trump, and its aggressiveness in prosecuting Biden’s son Hunter, according to people familiar with his comments.
When Wheeler defends Garland, she focuses mainly on misperceptions about the timeline. The Justice Department did vigorously investigate the case and quietly made a lot of progress. It’s not true that the investigation didn’t really get started until the DOJ was shamed into action by the June-July 2022 public hearings of the House Select Committee led by Reps. Bennie Thompson and Liz Cheney. It’s not true that things didn’t shift into high gear until the November 2022 appointment of Special Counsel Jack Smith.
She is fully justified in correcting the record on these misperceptions, and it’s important to get the history right. She’s also correct that the timeline might have worked out if John Roberts’s Supreme Court hadn’t stepped in to help push everything past the primaries and general election.
But this is beside the point, in my mind. The failure began at the outset, when Trump was allowed to retreat to Mar-a-Lago and act like any other ex-president. The problem was treating him like a normal defendant with a presumption of innocence whose case shouldn’t be prejudiced by White House commentary or pressure. He should have been treated like Jefferson Davis, not Richard Nixon.
Davis was arrested and held in military confinement for two years while the government debated whether to charge him with mistreatment of prisoners, complicity in Abraham Lincoln’s assassination or treason. In the end, he was charged with treason and was only spared from prosecution because President Andrew Johnson feared the Supreme Court would rule in Davis’s favor that he’d already been punished by the 14th Amendment’s prohibition on him ever holding public office again. Supposedly, this meant a treason conviction would be double jeopardy. It was an absurd claim, but one that the Court might have upheld because its members were just as shitty then as they are now. But, importantly, Davis was disallowed from running for office again. Trump was not.
Honestly, I believe Trump should have been arrested within days of Biden’s inauguration. He should have been the first defendant for January 6, as the one who was most obviously responsible. He could have been held in a military brig while evidence for his prosecution was gathered, and if the Supreme Court didn’t like it, they could have pounded sand. Let Congress try to impeach Biden for holding Trump without charges, but it would not have worked.
All of this was probably unrealistic, and I understand anyone who is willing to argue that it was never in the cards. But the result is that we Neville Chamberlained the threat, in a naive desire for peace and normalcy. Only a greater degree of force and commitment than that provided by the enemies of democracy and justice could have prevented this catastrophe.
In two weeks, we will begin living under a fascist regime. And we will find out what happens to rules, norms, and niceties when the rule of law isn’t strong enough to stand up for itself.
