MSNBC’s defense of Merrick Garland misses the point

MSNBC is promoting a post by Marcy Wheeler (“Emptywheel” online): “Merrick Garland isn’t to blame for delays in Trump’s election interference (https://www.msnbc.com/opinion/msnbc-opinion/merrick-garland-isnt-blame-delays-trumps-election-interference-case-rcna141213). The post would have us believe in a campaign to blame Garland for “all the delays” in stopping Trump and his brown shirts from ruining more of the country than they already have. True, Wheeler does not write “all the delays” but she implies it. The reason for not writing “all the delays” is that it would suggest that Garland is at least culpable for some of the delays, an admission that might compromise Wheeler’s access to sources^[1]. 

Second, we are not talking about DJT’s ‘election interference case’, as if it were, to cite noted legal authority Dennis Franz, a case of “some punks stealing luggage”. Trump’s federal case is not “election interference” (that is the GA state case). Trump’s federal case is violent insurrection with the purpose of preventing President-elect Biden and Vice President-elect Harris from taking office.

Third, Wheeler deliberately confounds (yes, “deliberately”, she is the expert on this story and knows what she is doing) delays attributable to the Alito-Thomas Family Court, which are not directly Garland’s fault, with delays that are directly Garland’s fault. No one says that SCOTUS (and Aileen Cannon) are not helping Trump by delaying the proceedings or by ruling in his favor or that SCOTUS acts must be laid at Garland’s feet. Nonetheless, confounding the delays (SCOTUS, Cannon, or DoJ) is a way of protecting Garland.

Fourth, even if the court delays are not Garland’s fault, the damages caused by delays attributable to the courts vary with time and these damages are imputable to Garland. A couple of months delay in 2021 are less costly, in terms of bringing DJT to trial before the election, than are a couple of months in 2024. Wheeler knows this but she expects that MSNBC readers will not.

Fifth, the para beginning “The department [DoJ] took overt investigative steps … long before Garland appointed Smith to the case” does not signify. We learn that DoJ IG Michael Horowitz “announced an investigation” on January 25, 2021. Subsequent steps, essential steps in nature and in timing being the subtexts, were taken on June 23, 2022 (17 months after 1/25/21) when the phone of well-known underwear model Jeff Clark was seized; and “a month earlier” [i.e., sometime in May 2022] a warrant was obtained for Clark’s “private email accounts”. There was to follow an August 2023 indictment [of Trump] describing Clark as a “co-conspirator”. These impressive measures, surely reflecting the solemn pursuit of justice as it is taught at Harvard Law School, occupied 31 months from January 2021 to August 2023 and Wheeler assures us that it could not have been otherwise simply because she says so although she knows the case histories perfectly and if there were a stronger case for Garland’s celerity to make, then she would have made it.

Wheeler’s narrative about dates and actions leaves other questions unanswered. The fundamental problem—Why did it take so long to appoint Jack Smith ? Garland’s failure on this point is inexcusable and it cannot be blamed on anyone else. 

Another question with Garland is the potential conflict of interest between his reliance on Jamie Gorelick as a personal adviser (see the brilliant Sarah Kendzior on this subject) and Gorelick’s work as a lawyer for Jared and Ivanka. Again, MSNBC does not mention a fact which might explain some of Garland’s behavior.

Why is the DoJ is finally accessing the January 6 texts of Secret Service officials ? There is no privilege issue, the phones are official devices and hence belong to the USG, there is no 4th Amendment issue, the defense of accidental erasure was always laughable … so why does Biden’s dog have to be the one to alert us to this ? The problem is that Chris Wray and Merrick Garland don’t want to know. Wheeler ignores this problem because it doesn’t fit her narrative that Merrick Garland is but one false step (Robert Hur) short of perfection.

Why did the fight to secure Pence’s testimony “[start] no later than July 2022” ? Pence was obviously a relevant witness and there would just as obviously be real legal problems about getting his testimony. If DoJ had been serious about Pence, they would have started this part of the inquiry on 1/21/21 instead of waiting 18 months.

Why has there been no effort to prosecute the attempted assassin(s) of Vice President-elect Harris ? And don’t start with any privilege nonsense here. There was an attempt on Harris’s life, no one seems to give a fig, and a possible suspect prances around the country making bad jokes about the whole affair.

Why is there no word about Ginni Thomas and the various members of Congress who were so aware of their own guilt that they begged Trump for pre-emptive pardons ? We know the Jan 6 committee let Thomas skate because Liz Cheney was protecting the Thomas family (game recognizes game here). But what is Garland doing about Thomas and the members of Congress ?

Why did Garland ignore Mueller’s charging recommendations ? There is no possible answer about privilege, delay, COVID, usw. Admittedly, this is not entirely Garland’s fault, given, for example, Barr’s interference and the feckless Democratic tradition of “looking forward, not looking back” about financial crimes before The Great Recession, but it

Wheeler concedes that “Garland’s record as AG is far from flawless: Robert Hur was a poor choice to be special counsel in the Biden documents investigation.” Wheeler’s (valid) admission on Hur misses the main point. Garland of course knew perfectly well who Hur was—a Trump activist in DoJ—and appointed him anyway. This is not a simple error of paperwork that could happen to the head of a very large bureaucracy. It is a gross failure of understanding because Garland knew Hur was (is) and what he would do. Hur’s goal was to attack Biden precisely to strengthen Trump’s selective prosecution defense that “everyone makes mistakes with confidential documents, it’s no big deal”.

I am not saying Wheeler is all wrong. The delays attributable to finding what was on Rudy’s phones (the para beginning “In April 2021”), the other investigative delays (para beginning “These often ignored …”) and the various privilege problems are substantive. There are technical and problems in hacking software (Signal, WhatsApp, etc.). It is true that “investigating Trump was like investigating a very corrupt law firm”. Wheeler concludes that “privileges must be protected or prosecutors risk blowing the entire case” and I do not know enough about privilege to disagree. Turf battles between DoJ and the Jan 6 Committee, according to Wheeler, created more delays.  Wheeler is a great journalist and a goal of her work, for years, has been to hold public officials accountable. It is impossible to understand why she pretends Merrick Garland should be above accountability, while the man’s laxity allows Trump and his institutional co-conspirators to avoid federal accountability. 

Of course, this is not really about MSNBC or TV lawyers or some obscure blogger. It is about what President Biden does to save democracy from Donald Trump. No matter how much smug confidence in “the rule of law” the MSNBC lawyers show on TV, when SCOTUS gives Trump immunity as it is likely to do in the DC and Florida cases, what will Garland do then ? Say, oh well, too bad, issue some weak SC report (heavily redacted to protect the guilty), mumble some mush about healing or looking forward (again !), and turn the majestic power of the law on those terrible ANTIFA people torching tractors in Nebraska ? Will Garland make a de facto extension of Trump’s (utterly bogus) immunity to his co-conspirators and expect that the insurrection will be anything but emboldened?

The latest SCOTUS interference, instead of creating a legal rationale for DoJ inaction, in fact makes action even more necessary. Everyone knows that the Florida and DC trials of Trump will be dragged out until after the election or dropped altogether. Garland has no reason not to bring superseding indictments against the co-conspirators today so the public can at least see what Trump was ordering his flunkies to do because the threat of delaying Trump’s trial(s) is now moot.

If Garland won’t act like he is working for the citizens during a serious and continuing threat to the country, then President Biden should get someone who will do that and who will stop making excuses. 

[1]. Wheeler knows Trump’s case documentation as well as anyone, but it defies belief that she has no human sources.