Time for Merrick Garland to act: Trump can't get a pass on serious crimes over "politics"

Of course the Justice Department shouldn't be an instrument of politics. But this is about something bigger

Published April 6, 2022 6:00AM (EDT)

Former President Donald Trump speaks to supporters at a rally on April 02, 2022 near Washington, Michigan.  (Scott Olson/Getty Images)
Former President Donald Trump speaks to supporters at a rally on April 02, 2022 near Washington, Michigan. (Scott Olson/Getty Images)

Donald Trump should not be given a pass for committing serious crimes just because he used to be president and has a major political operation still backing him.

Last week, a federal judge found that Trump more likely than not committed felonies, through his systematic efforts to overturn the 2020 election, including the crimes of obstructing an official proceeding and conspiracy to defraud the United States. That finding adds to many developments that point toward the need for Attorney General Merrick Garland to seriously consider whether to prosecute Trump.

Trump's congressional and political allies have begun to preemptively make the case against the Department of Justice charging him with these and other crimes. They argue that any prosecution of Trump will immediately be dismissed by Americans as political and illegitimate, and some have even begun to intimate that such charges will result in turn in congressional investigations and eventually indictments of Democrats when Republicans regain control.

These arguments are without merit and bad for democracy. Garland must tune them out and make the right call on the facts and the law.

RELATED: Merrick Garland is ignoring the DOJ's original mission: Battling seditionists like Donald Trump

A federal court relied on extensive factual evidence provided by the House committee investigating the Jan. 6 attack to back up its finding of likely Trump crimes, and we can expect much more evidence — and more damning analysis — to come from that committee. That will put pressure on the Justice Department to seriously investigate the former president for potential crimes and, if the facts and the law support it, to prosecute him.

Trump's allies understand this, and they are looking to preempt Garland from even starting down this road, but all they have are bad faith arguments. Many have said things similar to Sen. Mike Braun's statement that if there is a federal prosecution of Trump, "at least half the country would say it's all politically motivated."

"I wonder if they're ever going to file charges against Hillary Clinton for what she did after 2016," mused Sen. Ron Johnson recently.

Some have raised the prospect that charges would be met with congressional investigations, and perhaps eventually criminal charges, of Democrats. "I wonder if they're ever going to file charges against Hillary Clinton for what she did after 2016," Sen. Ron Johnson said recently. Hillary Clinton, of course, did not lead an effort to overturn the 2016 election, and certainly not one that led to a violent attack on the Capitol.

Of course it is essential in a democracy that our law enforcement agencies and justice system never be used for politics. An administration using investigators and prosecutors to protect a president's friends and go after his enemies is what happens in authoritarian countries. It is what happens every day in Vladimir Putin's Russia. That is why, as a former federal prosecutor, I was so outraged when Attorney General Bill Barr, at Trump's public urging, interfered in unprecedented and grossly political ways to undermine the prosecutions of Trump allies Roger Stone and Michael Flynn and set up investigations that appeared designed to go after political enemies of Trump.

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It is also why Attorney General Garland has likely been so cautious about any move toward investigating Trump. Garland is working hard to restore the internal morale and external integrity of the Justice Department and understands that a prosecution of Trump, regardless of its obvious merits, could be criticized as political.

But appropriate caution does not mean giving a pass for criminality and anti-democratic abuses. My organization, Citizens for Responsibility and Ethics in Washington, has documented 48 credible allegations of criminal violations by Donald Trump while serving as or running for president. Forty-eight.

Some of those potential offenses stem from Trump illegally withholding military aid from Ukraine, in an attempt to extort President Volodymyr Zelenskyy into helping Trump politically by launching a phony investigation of Joe Biden and his family members. Others involve Trump's efforts to misuse the government to help overturn an election that he lost and to incite a violent crowd to prevent Vice President Mike Pence from certifying the election. The crimes also include destroying records and obstructing justice.

The sheer scope of Trump's likely criminality is unprecedented, as is its severity. It is hard to conceive of more serious crimes that a president could be involved in than illegally acting to interfere with the peaceful transfer of power, which is the cornerstone of a successful democracy. Investigating and seriously weighing prosecution would not be political under these conditions. 

In fact, the failure to investigate and seriously consider prosecuting such egregious conduct would be inexplicable. Forgoing meritorious prosecutions for fear of political criticism is itself a political act, and one that would do grave damage to the republic. It would send the message that a president can do essentially anything without consequences. If Donald Trump regains the presidency, which he seems poised to try to do, he would most certainly heed this lesson and become still more brazen in illegal steps to consolidate his own power.

Indeed, it is the threat of retaliatory investigations and prosecutions — without anything resembling a similar set of well-developed facts and legal analyses to justify them — that is inherently and dangerously political. To say that any prosecution of Trump for real and supported charges would be met with manufactured charges against opponents is the very definition of misuse of the justice system for politics.

That is not what America is about. It is time to let the law and the facts lead and to ensure that abuses of democracy, regardless of who commits them, do not go unpunished.

Read more on the Jan. 6 investigation:

By Noah Bookbinder

Noah Bookbinder is the president of Citizens for Responsibility and Ethics in Washington (CREW) and a former federal corruption prosecutor. He previously served as chief counsel for criminal justice for the Senate Judiciary Committee. Follow him on Twitter: @NoahBookbinder

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Commentary Department Of Justice Donald Trump Jan. 6 Committee Merrick Garland