The Available Evidence Says Merrick Garland *Is* Prosecuting Controversial Cases from Trump Years

I’m waiting for the arraignment hearing for the Chair of the former President’s Inauguration Committee, which I thought would be a good time to respond to this Jennifer Rubin column that starts by discussing whether DOJ will rule that Mo Brooks’ actions related to the insurrection are his job (and therefore DOJ must substitute themselves for Brooks as a defendant); as Michael Stern laid out, that question is actually a complex one legally.

But Rubin goes from there, a civil lawsuit, to conclude that that Merrick Garland is “determined to sweep” Trump’s misconduct around January 6 “under the rug.” She goes from there to conclude that Garland is “refusing prosecution of controversial cases from the Trump years.”

We are not talking only about Trump’s actions on Jan. 6 or about possible misconduct (e.g., obstruction of justice, misleading courts) in the Justice Department that Garland seems determined to sweep under the rug. Trump’s attempts to strong-arm Michigan and Georgia election officials after he lost the 2020 election were not only a violation of his oath but also may have violated state and federal law prohibiting election fraud and manipulation.

In the case of Georgia, we have Trump on tape telling the secretary of state to “find” enough votes for him to win. What stronger indication of a serious election crime could possibly exist? So far the Justice Department seems to have left any investigation to the Fulton County prosecutor, who unsurprisingly has more pressing priorities. There is no legitimate reason for the feds’ refusal to investigate and, if warranted, prosecute Trump for conduct that no other president in history ever contemplated. If any other American’s participation in this set of facts would prompt a serious federal investigation, Garland must not exempt the former president. That is the meaning of “no one is above the law.”

Garland may think he is attempting to avoid politics by refusing prosecution of controversial cases stemming from the Trump years. If so, he has it backward. If the current president wants to pardon individuals from the previous administration for political reasons, that is his prerogative — not Garland’s. Especially when it comes to any post-election conduct abetting sedition and attempting to corrupt the ballot tabulation, we need an attorney general to aggressively pursue facts and bring actions against Trump and his supporters where warranted. If not, Garland would have inadvertently affirmed Trump’s argument that he was above the law.

As noted above, I’m on hold awaiting the arraignment for Tom Barrack, believed to be worth around a billion dollars and someone whose business ties to Trump go back four decades, on charges that he served as an agent (not a lobbyist!) for the United Arab Emirates to change the policy of the United States to benefit that country.

Now’s a good time to respond to this column, I guess, and all the hundreds like it, not least because it’s insane to say that Garland is refusing controversial prosecutions when he is prosecuting this one (and investigating Rudy Giuliani, in spite of serving as the former President’s lawyer while he was President).

Not only is the fact that this case is being prosecuted evidence that Garland is not shying away from such prosecutions, but it tells us two more things about any hypothetical controversial prosecutions.

First, even for a prosecution that was largely set to go over a year ago, those cases might not be charged — for whatever reason — yet, 137 days into Garland’s tenure. (It’s worth noting that grand juries have been backed up on account of COVID.) So it’s too early to say whether Garland is refusing to prosecute other controversial cases, in addition to this one, because for any such prosecution that wasn’t all wrapped up in a bow over a year ago, it might still take some investigative work.

Additionally, this case didn’t leak!! Unlike Billy Barr’s hyper-politicized DOJ, we’re not getting leaks about what’s coming via Sidney Powell or other Fox News talking heads.

So even if there were ten more similarly controversial prosecutions coming down the pike, we might not know about them. Which is how it’s supposed to be.

Both item one — prosecutions take time — and item two — with the exception of Michael Sherwin’s public support for sedition charges, in response to which Garland referred him to OPR for investigation, Garland’s DOJ is not leaking like a sieve — presumably also apply to any investigations involving Trump and those close to him that didn’t take place 4 years ago.

What I do know is that Garland has repeatedly told prosecutors to go wherever the evidence leads on January 6. What I also know is that the complex militia conspiracy cases most likely to lead in that direction (as well as the one defendant who was discussed by the President’s lawyer) are making progress, in the Oath Keeper case, at a faster clip than many of the other prosecutions. What I also know is that complex conspiracy cases take time, more than seven months.

I get that people have gripes about the decisions Garland made about sustaining the Barr DOJ’s position on civil cases. But you simply cannot draw conclusions from that about whether Garland is opposing certain prosecutions. The only evidence we have so far — in cases taking aggressive actions against the former President’s lawyer and the former President’s long-time friend — is that Garland is happy to let prosecutors pursue cases for which they have evidence.

Update: I want to add one more point because people seem to believe that unless Garland appoints a Special Counsel, there’s no way DOJ is investigating the controversial cases. That misunderstands why Special Counsels get appointed: not because cases are important, but because DOJ or a particular prosecutor has a conflict that must be managed in some other way. There’s no known conflict for any potential Trump investigations, so we shouldn’t expect a Special Counsel.

Update: Thanks to those who pointed out I had made Rudy Trump’s client instead of his lawyer.

Update: Because a bunch of people on Twitter appear to continue to believe the false claim that Garland declined Wilbur Ross’ prosecution for lying to Congress, I’m going to link to this post noting that the declination happened under Billy Barr and also noting that DOJ IG likely had their own investigation into the allegations the outcome of which is not yet public.

50 replies
  1. Peterr says:

    Another factor in the pace of Trump-era prosecutions is the need to replace the various US Attorneys who would be carrying the load on these cases. Biden only this morning made the first 8 nominations for these posts, and the nominees would be in the following districts:
    WD of Washington
    ND of Indiana
    SD of Indiana
    WD of New York
    ED of Washington

    The White House bio of the DC nominee is very interesting (emphasis added):

    Matthew M. Graves has been a partner at DLA Piper LLP in Washington, D.C. since 2016. Previously, from 2007 to 2016, Mr. Graves worked as an Assistant United States Attorney in the District of Columbia, where he served in the Office’s Fraud and Public Corruption Section, ultimately serving as the acting chief of the Section. From 2002 to 2007, Mr. Graves was an associate at WilmerHale. From 2001 to 2002, he served as a law clerk for Judge Richard W. Roberts on the United States District Court for the District of Columbia. Mr. Graves received his J.D. from Yale Law School in 2001 and his B.A. from Washington and Lee University in 1998.

    This would seem to fit the conclusion of the post. This is the kind of person you name to as the DC US Attorney if you expect to see a lot of fraud and public corruption cases coming across the desk.

    • Leoghann says:

      That’s quite a resume–heavy on both DC experience and corruption prosecution. Good to see. I’m sure some in the RWNM are already working on ways to promote the idea that selecting well experienced people for USA positions is somehow Unconstitutional.

  2. civil says:

    Garland is prosecuting *some* controversial cases from the Trump years and not others. An example of one that should be prosecuted but hasn’t been: Trump’s campaign finance law violations in the hush money payment to Stormy Daniels via Michael Cohen, which Cohen served time for.

    Trump also failed to report his debt to Cohen on his 2017 financial disclosure form:$FILE/Trump,%20Donald%20J.%20%20final278.pdf
    Trump attempted to avoid certifying the form as ” true, complete and correct to the best of my knowledge,” but eventually did so, despite it not being complete and correct — since it omits his debt to Cohen, which the form requires be reported.

    The AG can bring civil or criminal actions against someone who lies on that form:

    • Randy Baker says:

      I agree that the failure to charge for the campaign violation of which Cohen was convicted — I would assume it would be easy to charge as conspiracy — is worrisome. So, is the failure to charge any of the obstruction offenses Mueller outlined– which were wrapped in a bow.
      Yet, if Garland truly is granting prosecutors free reign to prosecute the cases that warrant it, those prosecutors might well have decided that it is worth holding off until their investigations in the several other potential cases have concluded, e.g. conspiring to prevent Congress from performing its official duty to count the votes and declare Biden President. Joining charges almost invariably advantages the prosecution. That likely is particularly so in the case of Trump, since the crushing majority of the charges might be explained around the central narrative of crimes committed to win the 2016 election, crimes committed to prevent removal through discovery of those crimes, and crimes committed to win the 2020 election and/or to overturn it and thus remain in power.

      Relatedly, since Trump, as his former lawyer Michael Cohen put it, speaks in code, i.e. he largely avoids expressly urging criminal conduct. Prosecutors likely will want to prove that point by introducing in evidence the numerous incidents in which crimes on Trump’s behalf were committed following his coded directions. When something [a crime for Trump] is committed over and over again after the coded words are uttered, the defense that the crime was not the intended outcome becomes increasingly less credible. If the cases are not tried together, Trump’s defense will have a better shot at excluding these other incidents as irrelevant or substantially more prejudicial than probative — even if they in fact are not.

      • subtropolis says:

        That’s precisely how I see it. He is a very special case, for multiple reasons. I think that it would be smart of prosecutors to continue going after those who’ve broken the law on his behalf. Not only does it increase the odds of turning up someone willing to testify against him, but the piling on of evidence is not only helpful, but may be necessary.

        I’m actually not keen to see him prosecuted for the Stormy Daniels affair. It’s a podunk case. Given the situation in the Untied States right now, I’d much rather see him sentenced for crimes that are much more grievous. As it is, a trial will almost certainly touch off those already barking about civil war. I’d rather that the charged crimes have the potential to keep at least some of his fans sitting on their hands, as it were. The Daniels case is not the one that would bare that asshole’s criminality. It’s a target-rich environment, and DoJ can do better.

    • Mike says:

      The statue of limitations clock is running on these offenses, unless there is something that extends the time. Or stops the clock, like a sealed indictment, correct?

      • Randy Baker says:

        I haven’t looked into it. My recollection is that most federal felonies are 5 year statutes. So, the Mueller cases would not begin to run at earliest until 2022. Moreover, if any of the offenses was committed pursuant to a conspiracy, I do not believe the statute would begin to run until the commission of the last act in furtherance of the conspiracy — which likely occurred well after 2017.

        Additionally, although I have not researched this, a prosecutor might argue that Trump was effectively out of jurisdiction during his presidency based on the rule that a sitting president can’t be indicted. Of course, that may not fly since a judge might agree with many of us that this contention is simply wrong, and that it turns not on law, but simply on the opinion [arguably self serving] of the Office of Legal Counsel.

        • bmaz says:

          Lol, I have “researched” all of this. The SOL is five years. No, nothing tolls that because Trump was President, and, while technically possible, there is about zero chance “conspiracy” will save anything. And to Mike’s point, no there are no sealed indictments. That was always a fever dream that ought be dead by now.

        • Randy Baker says:

          Off the top of my head, the fact that Flynn, Stone and Manafort each lied to conceal facts Trump wanted to remain undisclosed, that he pardoned them for having done so — and indeed had Barr go into court with Rule 11 warranting theories to first secure leniency for them gets you pretty far towards a prima facie case of conspiracy. If I spent some time, I am sure I could come up with considerably more in the public record. If I were prosecuting the case and issued some subpoenas — including placing these fellows under oath [and the pardons would not immunize them from perjury] I think conspiracy to obstruct justice looks quite promising — and the S/L for that offense is 5 years from the last act, which, at least, would be the 2020 pardons.

  3. TooLoose LeTruck says:

    ‘People continue to claim with no evidence’…

    Good title for a book about this era… when we’re far enough away from it do do a valid, accurate post mortem…

  4. Rugger9 says:

    It still makes me wonder why Barr didn’t shut this down when he had the chance. As Subtropolis noted on the prior thread, DJT and Barrack were reported to be on the outs (as near as I can tell because DJT didn’t get his “deserved cut”). But with that said, Barr at least ought to have grasped how many things Barrack knows about the inaugural accounts which not only exposes DJT but also favorite daughter Ivanka to some serious charges (like embezzlement, if one speculates wildly) and talked DJT into burying that hatchet for his own good. It’s not like DJT hadn’t held his nose to protect others with leverage.

    It seems Garland is going to make sure any charges he brings will stick hard. After all, when one goes after the king (even if it is in his own dreams) one had best not miss.

    • timbo says:

      Because actively shutting something like that down directly is not smart? Barr was where he was because he was smart, not stupid. Barr is a political survivor, not someone who just acts precipitously because of some ancillary case somewhere. He appeared to be good at appointing folks who would “do the right thing” (for Barr’s purposes) to some extent? But so far there isn’t as much of his fingerprints on a lot of the shenanigans (yet). Barr quit being AG when he realized that keeping his hands clean (enough… to not be considered a big fish in any insurrectionist investigations possibly?) was getting difficult. If Trump hadn’t lost the electoral college it’s entirely possible that Barr might have become bolder in obstructionism or advocacy for Presidential pardons. As it was, because of the uncertainty of the legal pieces in so much of the Twitler (first and only?) regime, Barr wasn’t the one to get too far immersed in the Trumpian reality distortion field when His jig appeared to be up.

      It’s almost certain that Barr knowingly obstructed a lot of things. But he isn’t someone who tended to put any of that on paper, nor to have conversations with so many people that any adverse legal consequences might land easily on Barr’s plate later. He’s one devious privileged dude. And it appears now that he was more allied with McConnell than anyone else that I can think of offhand…other than himself, of course.

      • subtropolis says:

        Without any doubt, he was there to protect the republican brand, not TFG. It amazes me that so many carry on about Barr being loyal to that guy.) Barr, McConnell, McGahn — they were all about landing the plane, which meant keeping that shithead from doing too much damage while they crammed as many judicial appointments through as they possibly could.

        I’m sure that all three of them — and many other republicans besides — breathed a sigh of relief when he lost. But they screwed up in a big way, in their determination to protect the brand. By not convicting the bastard, they’ve fucked themselves. Now, the republicans have another plane to land, attempting to mollify the crazy mob enough to get themselves back into a majority.

        McCarthy, especially, makes me laugh on that point. Does anyone else think that, should the Rs take the House majority back, that TFG will swoop in to grab the Speaker’s gavel from him? I’d hate to see it (an R majority) happen, but the look on McCarthy’s face might make it momentarily less painful.

    • subtropolis says:

      I want to point out that what I was getting at is the possibility that the primary reason that Humpty Dumpty had distanced himself from Barrack during the summer of 2019 was not due to the latter getting all of “his” money. Rather, it might have been more about his knowledge, around that same time, that Barrack was in deep shit, and that extricating him might be terribly awkward. Hence, he did what he always does in these situations: run away in the other direction.

      Why might TFG have felt that it was too hot to handle? This case is ripe for NSA surveillance. Not of Barrack directly, of course. (That would be the FBI!) But NSA might have all kinds of juicy recordings of those with whom Barrack had been dealing with, and the individuals who those people were communicating with. They might have spoken about details that are terribly incriminating for TFG.

      • emptywheel says:

        I agree this is likely one of the reasons Trump distanced himself. I don’t know that it’s the NSA surveillance. But he distanced himself from every flunkie who was charged, at least at first.

  5. Leoghann says:

    While it was good to see Rubin not joining the lockstep adulation of Trump in 2017, and continuing without changing her mind, it seems like, since the election, she has fallen prey to the desire of so many of us in the Loyal Opposition to see bad things happening to Former immediately and publicly. As with many truly awful people, just having to live in his skin (and with his demented mind) is a punishment stronger than I’d want to endure. But as Marcy and bmaz continually remind us, investigations take time, as does the development of prosecution strategy. We’ve also become used, in the last four years, to having major events, or events portrayed in the media as major, happen nearly every day, to be replaced the following day with yet another cataclysm. That just isn’t the real world. I’m content to have cool things like the Rudy raids happen periodically. I’m old enough to remember both the Watergate and the Iran-Contra hearings and prosecutions. When the hearings and court cases start, we’re going to become really bored with that. In the meantime, I’ll just keep busy rebuilding my house, as I hope for a lightning strike at one of Former’s rallies.

    • bmaz says:

      Ooof, what do you have to rebuild? We just had a four day stretch of massive rain. Six years ago +/- we would have had massive water in the house because of crappy roof. Finally got it really redone, and not a drop this time. Even though the washes in the neighborhood, normally bone dry, were flowing wildly. Was actually nice.

      • subtropolis says:

        Oof, indeed! Upon arrival after picking up the keys to my last house, the roof over the kitchen was leaking due to a heavy storm the previous day. A previous owner had started work on a balcony up there, and it was fucked. Like, a drain that ran uphill, and was blocked anyways, fucked. And multiple decidedly not watertight areas. After several attempts at repairs, we bit the bullet and rebuilt that part of the roof — as a proper roof. Water is a bitch. I so know that feeling of standing in a dry room while the heavens open up, cautiously telling yourself to relax.

        • bmaz says:

          It is a pretty long story, but water from above really is a bitch. You can fix the other stuff, but not while water is coming down.

        • Leoghann says:

          Then there’s the old hillbilly wisdom about roofs. “Can’t work up there while it’s rainin’, and when it’s not, that roof is as good as any man’s.”

          This house sat vacant for a couple of years, and was badly neglected for five or so before that, with open plumbing leaks and a bad roof. My nephew and I replaced 40% of the subfloor, as well as reconfiguring the walls after the floor was installed, before we moved in. I also replumbed and rewired the place, and completely rebuilt the bathroom. The rest of the old floor needs to come out, I’ve already decided where the last wall goes in and redesigned the kitchen. But I’m working by myself now, so the going is slow.

        • P J Evans says:

          Congratulations on all the completed work!
          (My parents bought a house that was a foreclosure and had been empty for several months. Most of the work was cleanup inside and out. They made a deal with the forecloser: we’d do the work, and they’d lower the price. It was a fairly good deal all around: they’d never have found some of the problems.)

        • Leoghann says:

          Termites, mold, rodent damage, plumbing and wiring problems. All are things that really don’t show up until you start opening walls.

      • Chetnolian says:

        4 straight days of rain? In Az? That’s good news is it not? Though not coming through the ceiling I grant you

        • bmaz says:

          Oh, no, it was wonderful, and much needed. Very much a good thing. Given that the ceiling is now sound, I would like much more.

        • P J Evans says:

          In CA there tend to be flood control dams and percolation basins, so some of it goes into the ground.

  6. Hoping4Better_Times says:

    Merrick cannot do it all. There is a 5 year statute of limitations for most crimes. So whatever happened in 2016 will expire sometime in 2021. State prosecutors can also bring charges against trump and/or his henchmen. Fani Willis, Fulton County DA, is known to be investigating trump’s interference in Georgia’s election results. His phone calls trying to pressure Georgia SOS and a Georgia Investigator in an effort to influence the Georgia election results were taped. How long will it take to do a full investigation, gather all the evidence and get a Grand Jury indictment, IF she has the facts, the proof and the courage to charge the tfg under Georgia state law? Six months and counting.
    PS: the Governor does not have the power to pardon in Georgia. That power is held by a Pardons Board after the felon has served his/her time.

  7. Earthworm says:

    My sense is that much of the griping about “slow pace” of investigations, prosecutions, arraignments, etc is because gripers are looking over their shoulders at the 2022 elections bearing down on the nation. The tension is building.

    • Ravenclaw says:

      From that perspective, one would want the cases coming to trial (and resulting in convections) around a year from now, so the issues would still be fresh in the minds of voters that fall…

      • TXphysicist says:

        Exactly. And surely, that is one reason congressional Democrats have been content to let Republicans stall out the formation of a Jan. 6th investigatory committee until now.

        But I think there’s possibly another reason; Let Trump, McCarthy, Graham, et al. pivot. Let them try to upend the narrative, for a while. They lose a bit of the presumption of innocence regarding their actions leading up to the insurrection attempt when they intentionally mischaracterize the day’s events after the fact. McCarthy and Graham even got caught telling the truth about their perception of Trump’s relatively central role in stoking the mob during the immediate aftermath of it all.

        And that’s why I laughed (and kept my money) when I read The Intelligencer’s published excerpt of Michael Wolff’s account of January 6th, which was something like: “Rudy Giulianni and Jason Miller, who was in bed next to his wife, watched the day’s events unfold in complete terror, just like Donald Trump, because literally no one thought that violence was remotely possible on that cold, cold January afternoon. Who could have known??”.

        Because, yeah, since then, they’ve *all* realized and admitted to the error of their ways and begun telling hard truths regarding electoral integrity, even though it’s cost them some political power.


  8. timbo says:

    I’d be expecting more of these high profile insider cases to become more prevalent as we get into the fall and next year’s election cycle… I also like the fact that this landed the week before the Select Committee hears its first public testimony. Seems like this causes the cockroaches of the Twitler regime to maybe not be so vocal if they have similar legal problems as Barracks, not just direct involvement in the insurrectionist movement directly.

  9. joel fisher says:

    Volume II of the Mueller Report is a complete, ready to go investigation of the obstruction of justice by Former. What’s the hold up? The pardoned behavior is still criminal–I get it, it can’t be prosecuted–but it’s worth investigating. Post pardon, Flynn and the rest have less 5th Amendment Privilege and there are questions to be asked of him and others. Manafort, for example, why were you giving the polling data to the Rooskies? Shouldn’t somebody ask that traitor a question or 2. Sure he’ll have pricy lawyers who can gum up the works for a while, but that’s the reason to get started, pronto.

  10. subtropolis says:

    Thanks, Doc! I hope that you never tire of posting these reminders. I’ve been attempting to tamp down emotions from those hyperventilating about this over at the Daily Chaos, but the pushback can be surlier than bmaz on a particularly bad day. The expectations are beyond reason.

    This is why Law & Order never had 19-episode storylines, I suppose. Most laypeople can’t hack it. Unfortunately, to the television viewers, reality ends up looking like a sham.

  11. skua says:

    “former President’s client while he was President”
    Should this be “former President’s lawyer while he was President”?

    If not then I’m having a sustained moment of incomprehension.

  12. Phaedruses says:

    “in spite of serving as the former President’s client while he was President”

    shouldn’t client be lawyer?

  13. Sharksbreath says:

    You would have a point if Trump was charged with the list of crimes in the Mueller report.

    He should have been charged right after Garland was sworn in.

    • Leoghann says:

      Yeah, because things happen in the twinkling of an eye at DOJ, especially when there’s been a change in party in the executive branch. If Garland were worth his salt, he’d have told those lawyers to have 100 indictments ready for him by start of work the second day.

  14. Rusty Austin says:

    I appreciate that prosecutions take time, at least as far as rich and well connected criminals are concerned. Another system altogether applies to the not rich and not well connected. Were I to do even one of the hundreds of crimes Trump and his coterie have committed I’d be doing a long stretch at Shawshank by next Thursday.

    • bmaz says:

      No, you would not. First off, Shawshank is a fictional state prison in Maine conjured up by Stephen King. It does not exist. Secondly, it was a state, not federal, prison, even if a fake one. 3) Even if indigent, you would have a public defender and would not be “doing a long stretch by next Thursday”. By the way, Federal Public Defenders are quite good.

      You do not have a clue what you are talking about. We try to do better than that here. You have a grand total of nine comments here, starting June 11, when you castigated the “sober discussion” we have in this forum. Pretty much went downhill from you from there. So, spare us.

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