Does Attorney General Merrick Garland know that he is investigating the man most likely to be the opponent of the president he serves? Does he realize that the intense political pressure campaign that he’s under to indict that man has been plainly visible to everyone? Does he care?
If we can’t know where Garland is ultimately heading in his probe of Jan. 6 and the documents seized from Mar-a-Lago, all indications are that he is preparing the ground for an indictment of Donald J. Trump.
The former president is inflammatory and mendacious as a matter of course, but in this case, it is the mild-mannered former judge who came within a hair’s breadth of a lifetime appointment to the Supreme Court who is rehearsing for the role of arsonist.
An indictment of Trump would be one of the most consequential acts by the Justice Department in decades, and Garland has a flagrant conflict of interest and is likely to have to use an adventurous legal theory to try to nail Trump — at the same time, the legitimacy of his institution is increasingly in doubt.
This is not a promising formula. An attorney general shouldn’t consider the prospect of reaping the whirlwind and think, “Bring it on.”
The Jan. 6 committee, elected Democrats, and the media have been braying for Garland to move against Trump. President Biden himself has reportedly told aides in private that Garland should indict Trump. “Garland Faces Growing Pressure as Jan. 6 Investigation Widens,” The New York Times reported earlier this year.
It would take truly cussed independence and enormous moral and political courage not to take the path of least resistance and give in to these voices. Garland appears to be bending, presumably on his way to breaking.
It is amazing that he’s gotten this far without feeling a prick of conscience about his own status. I have no use for special counsels as a general matter, but how can an attorney general make highly sensitive determinations that will quite probably affect the state of play of the next presidential election without realizing he has a profound conflict of interest?
It’d be one thing if Trump had shot someone on Fifth Avenue — a clean, no-doubt crime that wouldn’t require any novel theories or difficult-to-probe contentions about his state of mind to prosecute.
In contrast, Trump’s Jan. 6 offenses involve alleged crimes, like obstructing Congress or defrauding the U.S., that are going to involve tricky questions about his motives and where the legitimate exercise of his powers ends and the supposed criminality begins.
Needless to say, the country is not prepared to adjudicate such questions in a calm, high-minded manner. It will be the O.J. Simpson trial meets the Hiss-Chambers case, with a presidential race not in the background, but very much in the foreground.
The fact of the matter is that while Trump’s moral blameworthiness for Jan. 6 is not in doubt, his legal culpability is. It’s easy to write an op-ed or say on cable TV that Trump incited an insurrection. As a legal matter, though, Trump didn’t come close to crossing the line to incitement, which has very specific and high standards under law.
Even his infamous Georgia phone call looks different on the close reading it would get as part of any court case — by the end of the call, his lawyers were only asking that the secretary of state’s office tell them why their count of suspected fraudulent votes was off.
In an environment of ever- spiraling political conflict, it’s difficult for anyone to exercise forbearance — to realize the most emotionally satisfying course isn’t necessarily the correct one and to be constrained by the public interest, even if that enrages his or her own side.
Merrick Garland can still err on the side of statesmanship. He looks set, though, to choose the abyss.
Rich Lowry is editor of the National Review..