Opinion: The three biggest decisions facing Merrick Garland

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If all goes as planned and Garland takes the reins at the Justice Department, he will face a daunting thicket of quandaries that present thorny issues of law, accountability and politics.

Garland will bring impressive credentials to the attorney general position. Unlike the former Attorney General William Barr, Garland earned his stripes as a trial prosecutor for the Justice Department. Among many other cases, Garland supervised the investigation of the 1995 bombing of a federal building in Oklahoma City, which killed more than 160 people, and the 1996 Olympic Park bombing in Atlanta. In 1997, he became a federal appellate judge for the US Court of Appeals for the District of Columbia Circuit, widely regarded as the second most important court in the country, behind only the Supreme Court. Garland became chief judge of the circuit in 2013.

It will take all of Garland’s legal experience and political acumen to negotiate the complex decisions an attorney general will face. Here are the most important decisions that Garland will likely make at the Justice Department headquarters.

Trump was acquitted in both impeachment trials, first on charges of abuse of power and obstruction of Congress in 2020 stemming from his phone calls with the Ukrainian president and then on a charge of inciting an insurrection a year later. Now that he’s left office, however, Trump could face potential legal exposure across multiple fronts, including (1) bribery, extortion and other alleged offenses relating to the Ukraine scandal, and (2) incitement of a riot, sedition and other potential charges relating to the January 6 Capitol insurrection. He could also face legal trouble when it comes to (3) obstruction of justice of former special counsel Robert Mueller’s investigation and (4) campaign finance violations based on hush money payments to two women with whom Trump allegedly had affairs, (Trump denies wrongdoing on all of these potential charges.)
January 6 was the crime of the century
Will Garland authorize the Justice Department to open and pursue criminal investigations on some or all of these matters? Will he appoint a special counsel to focus solely on Trump-related matters? Will he dole these cases out to various US attorneys? Or, will Garland do nothing at all and let the past lie?

This last option would be a mistake. I understand that it’s not an easy thing to investigate a former president, and even more difficult to prosecute one. Trump, who retains the fervent support of tens of millions of Americans, would likely break out the old attack lines against anybody who dared to investigate him (“witch hunt!”) and any prosecution would be perceived by some as politically vindictive.

But it would simply be unjust to turn a blind eye to all of Trump’s alleged misconduct while running for, and holding, the presidency. Trump benefited while in office from the Justice Department’s policy against indicting a sitting president, and there is no question, legally or constitutionally, that a former president can be charged criminally.

I understand why it might be easier for Garland and the Justice Department, and perhaps preferable for Biden politically, to just let the past be the past and to “move on.” But that’s not what prosecutors do, or ought to do. Prosecutors shouldn’t shy away from difficult fights; the job itself is often about taking on powerful people or interests and seeing that justice is done.

At a minimum, Garland must ensure that the Justice Department conducts full investigations of Trump’s conduct. And once he gets all the facts, he must make a decision, thumbs-up or thumbs-down, on whether Trump has broken the law.

The most devastating piece of evidence at the Trump trial
What, then, should Garland do about this potentially politically loaded investigation? My answer is: nothing. Let it be. Let the assigned federal prosecutors and law enforcement agents carry out their investigations fully, and without interference, influence or input from the attorney general’s suite. Make no public comment about the investigation and convey nothing to the assigned investigative teams other than: “Do your jobs and report back.” And let them make recommendations about whether the evidence, once gathered, does or does not support criminal charges. So far, the Biden administration, which has begun the process of removing Trump-appointed US attorneys, has asked US Attorney David Weiss, who is overseeing the tax investigation of Hunter Biden in Delaware, to continue in his role, according to a Bloomberg report.

Hunter Biden investigations

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Hunter Biden has revealed publicly that he is under criminal investigation by federal authorities for his “tax affairs” and reportedly for his business dealings in China. The US attorneys for the District of Delaware and the Southern District of New York are reportedly handling the Biden investigations.
Despite pressure from Trump, neither Barr nor his successor appointed a special counsel to handle the investigations of Biden’s son. Biden issued a statement saying, “I am confident that a professional and objective review of these matters will demonstrate that I handled my affairs legally and appropriately.”

John Durham investigation

Yes, this Barr-initiated “investigate the investigators” quest into the origins of the Russia investigation remains ongoing, even though everybody from Robert Mueller to the Justice Department’s inspector general to the Republican-led Senate Intelligence Committee has concluded that the investigation was appropriate and necessary.
Before he left office, Barr appointed Durham as special counsel, effectively ensuring that Durham’s work will continue until its natural conclusion (though Barr’s timing — more than a year after Durham began his work — was suspect, and the appointment itself violated the requirement that special counsel must come from outside the government, a fact nobody has ever formally challenged).
Again, Garland’s best, and perhaps only (given the special counsel assignment) option is to let the Durham investigation play out, without interference. And, unlike Barr, who publicly distorted Mueller’s findings as special counsel, Garland should allow Durham’s report to speak for itself in the public realm.

Now, your questions:

More broadly than any particular case, Garland must rehabilitate the Justice Department after nearly two years of unprecedented politicization and dishonesty by Trump and Barr. To that end, Garland simply must bring the Justice Department back to basics: be honest with the public, keep politics out of prosecution and support the men and women who work on the front lines.

Gary (Michigan): If Trump is someday convicted of a crime, can he still legally run for president again in 2024?

Gerry (Rhode Island): Can civil charges be brought against Trump for his role in the January 6 insurrection?

Yes. Article II of the Constitution establishes certain restrictions on who may hold the office of president: the person must be at least 35 years old, must be a “natural born citizen” and must have been a resident of the United States for at least 14 years. There is nothing in the Constitution, or in any other legal authority, to prevent a person from becoming president if he has been convicted of a crime. As a practical matter, of course, a criminal conviction would make it difficult to win an election. But there is no formal restriction under our laws.
They already have. Last week, Democratic Rep. Bennie Thompson brought a lawsuit under the obscure Ku Klux Klan Act of 1871, alleging that Trump, Trump’s former lawyer Rudy Giuliani, the Proud Boys and the Oath Keepers conspired to use violence and threats to interfere with governmental functions. While the merits of the case remain to be litigated, I expect to see other, more conventional lawsuits seeking damages for personal injury and property damage brought against Trump and perhaps others relating to the Capitol insurrection.

Generally speaking, a plaintiff would need to show by a “preponderance” of the evidence — meaning that it is more likely than not — that Trump’s actions (or the actions of any named defendant) caused their injuries, and that those injuries were reasonably foreseeable based on the defendant’s conduct. In other words, if you played a videotape of Trump’s remarks at the January 6 rally, and then hit pause, would it be reasonably foreseeable at that point that injury would result to the plaintiffs?

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