No, Merrick Garland hasn't dropped the ball on accountability — but he still could

It's not too late to prosecute Trump-era crimes

By Heather Digby Parton


Published July 21, 2021 9:57AM (EDT)

Bill Barr and Merrick Garland (Photo illustration by Salon/Getty Images)
Bill Barr and Merrick Garland (Photo illustration by Salon/Getty Images)

On Monday night, there was a brief moment of serious consternation at the news that the Department of Justice (DOJ), under Attorney General Merrick Garland, had declined to prosecute former Commerce Secretary Wilbur Ross for lying to Congress after the department's Inspector General forwarded a serious referral presenting evidence that Ross had lied. The next day, the Associated Press, which published the report, issued a correction to say that it was actually the William Barr Justice Department that had issued the declination, not Garland which was a welcome relief for those who have been growing more and more concerned about whether there will be any real accountability for the Trump administration's lawlessness. After what he did with Roger Stone, no one expected William Barr's Justice Department to hold any Trump crony accountable. It remains to be seen if Garland will reverse that decision — but he certainly should.

Garland did announce some good news on Monday, however, formally reversing many decades of DOJ policy when he announced that, with some limited exceptions, the department would prohibit the seizure of journalists' records in leak investigations. This is a power that was egregiously abused in the last administration but was used liberally by administrations of both parties. Getting rid of it is a good step.

Garland's other recent decision to double the size of the voting rights enforcement staff to vigorously combat efforts to restrict ballot access and prosecute those who threaten or harm election workers was also very welcome. Unless and until the filibuster fetishists in the U.S. Senate agree to pass new voting rights legislation, these will be the only tools the federal government will have to protect the electoral system.

And the decision to reinstate the moratorium on federal executions, which Trump and Barr had dropped after almost two decades so they could go on a killing spree in the last year of Trump's term, is another huge step back from the moral abyss.

But there is reason to be worried about Garland's DOJ still.

The decision to support Trump's claim that he was performing his official duty when he demeaned and degraded E. Jean Carroll's integrity and her physical appearance as he denied her accusation that he'd raped her in a department store dressing room before he was president was inexplicable. This claim of immunity because he was doing his job is based upon a law that holds that an individual government employee cannot be held personally liable for what he or she does in the course of their duties. It's ridiculous that anyone would agree that being a disgusting boor is in the presidential job description, but it's even more worrisome that this concept is now being taken up by at least one of his henchmen and it could have very far-reaching consequences.

Alabama Republican Congressman Mo Brooks is now citing the same immunity in a lawsuit brought against him for helping to incite the January 6th insurrection. Brooks stood on the stage at the "Stop the Steal" rally and proclaimed that was the day "American patriots start taking down names and kicking ass." He says he was just performing his official duty, under the same legal theory that Trump used to excuse his crude defamation of E. Jean Carroll, a claim excoriated by Donald Ayer, deputy attorney general in the George H.W. Bush administration, Danielle Brian, executive director of the Project On Government Oversight, and Norman Eisen, special counsel to the House Judiciary Committee during the first Trump impeachment, who wrote an op-ed in the New York Times this week exhorting the Attorney General not to accept Brooks' claim:

It is difficult to imagine an act that falls farther outside the scope of a sitting congressman's official duties than what he is accused of doing: helping to provoke a crowd to lay siege on the center of our federal government, putting his fellow members at risk of physical harm and ultimately disrupting the vital constitutional process of certifying presidential election results...Certification that Mr. Brooks acted within the scope of his job would leave the United States government defending the right of its elected representatives to foment insurrection against itself.

They point out that if Garland grants this certification, then it is only a matter of time before Trump himself claims it in one of the many legal cases pending such as the one in Georgia in which he is being investigated for pressuring election officials to "find" the votes he needed to win the electoral college, in which case it will be the law of the land that politicians are immune from any legal accountability for attempting a coup. Or as Harvard Law professor Lawrence Tribe wrote in a piece making a similar argument, "to embrace that proposition is to embrace the quintessential dictatorial premise that the chief executive is the state." 

I have never been very optimistic that there would be any legal accountability for important Republicans, particularly Donald Trump. For quite some time there has been a widespread understanding in the political establishment that even in the face of outright criminal behavior, it would be dangerous to "lock up" high-level members of the government because it would start a cycle of retaliation. This idea certainly informed the Obama administration which made the decision not to "look in the rearview mirror" on the torture policies of the Bush administration. But as former congresswoman Elizabeth Holzman, D-NY, pointed out in a recent interview with MSNBC's Chris Hayes, it wasn't always so.

During Watergate, a large number of high-level administration officials went to jail. The attorney general himself (and a close personal friend of the president) did 19 months in federal prison after being convicted of conspiracy, obstruction of justice, and perjury. (The perjury charge, by the way, was for lying to Congress, which is what former Trump Cabinet member Wilbur Ross is accused of doing.)

I might have held out some hope that Congress would have been able to at least get to the bottom of the events of January 6th since it was such a grievous assault on the constitution and a physical attack on the capitol itself. However, the Republicans' rejection of the eminently fair Bipartisan Commission proved that they will obstruct any attempt to seriously investigate. With this week's appointment of at least four GOP supporters of both Donald Trump and the insurrection itself to the House select congressional committee, it's not looking very promising. One of them, Congressman Jim Jordan of Ohio, was obviously chosen for his penchant for histrionics in committee hearings which virtually guarantees that he and his cohorts will be playing to the audience of one, holed up in one of his presidential palaces in exile.

Meanwhile, the DOJ is dutifully prosecuting the actual insurrectionists who stormed the Capitol, so there is that. People are going to do time for what they did that day and you can't help but think of the words of Donald Trump himself who told journalists Carol Leonnig and Philip Rucker: "Personally, what I wanted is what they wanted." Of course, it was. But it looks like they're the only ones who will have to pay a price for it.

By Heather Digby Parton

Heather Digby Parton, also known as "Digby," is a contributing writer to Salon. She was the winner of the 2014 Hillman Prize for Opinion and Analysis Journalism.

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