AG Merrick Garland Is Failing To Defend American Democracy From Republican Coup Plotters

Rachel Maddow had an infuriating report Monday night on Attorney General Merrick Garland and his Department of Justice policy memorandum regarding candidates who have clearly committed crimes but are announced candidates running for office.

Apparently, the DOJ is outsourcing to criminals the decision as to whether or not they should be indicted and prosecuted for crimes. Every criminal defense attorney in America should advise their client to open an account with the Federal Election Commission and announce that they are running for president. Voilà! You are immune from prosecution (at least until the 2024 election is over).

Coup d’état leader Donald Trump clearly views the DOJ policy as green-lighting his “get of jail free” campaign for president and he fully intends to take avantage of it. He no doubt mockingly refers to “milquetoast” Merrick Garland as a “pussy” in his private conversations with his fellow coup plotters, none of whom have been indicted for seditious conspiracy and insurrection by the DOJ for their roles in the violent insurrection on January 6, 2021.

Rolling Stone reports, Trump Tells Team He Needs to Be President Again to Save Himself from Criminal Probes:

When Donald Trump formally declares his 2024 candidacy, he won’t just be running for another term in the White House. He’ll be running away from legal troubles, possible criminal charges, and even the specter of prison time.

In recent months, Trump has made clear to associates that the legal protections of occupying the Oval Office are front-of-mind for him, four people with knowledge of the situation tell Rolling Stone.

Trump has “spoken about how when you are the president of the United States, it is tough for politically motivated prosecutors to ‘get to you,” says one of the sources, who has discussed the issue with Trump this summer. “He says when [not if] he is president again, a new Republican administration will put a stop to the [Justice Department] investigation that he views as the Biden administration working to hit him with criminal charges — or even put him and his people in prison.”

[As] Trump talks about running, the four sources say, he’s leaving confidants with the impression that, as his criminal exposure has increased, so has his focus on the legal protections of the executive branch.

Merrick Garland’s constitutional law professor posts:

To AG Garland:

Mr. Trump is counting on your concerns about not “appearing” political when he makes clear his belief that you wouldn’t dare approve his indictment once he announces.

You MUST prove him wrong.

Make him a TARGET now. No time to lose.https://t.co/aO8OsSQlep

— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) July 18, 2022

https://twitter.com/tribelaw/status/1549318724716560384?cxt=HHwWgIC86fzKpIArAAAA

The January 6 Committee has been laying out the evidence before the “grand jury” – the American public – and for the Department of Justice in great detail, in many cases begging the DOJ to please act on the evidence.

NBC News reported, Attorney General Garland says he’s watching all Jan. 6 committee hearings:

Attorney General Merrick Garland said Monday he is watching the televised hearings of the congressional committee investigating the Jan. 6 riot, as members of the House panel focused on former President Donald Trump’s election fraud claims on the second day of testimony.

“I am watching, and I will be watching all the hearings, although I may not be able to watch all of it live,” he said. “And I can assure you that the Jan. 6 prosecutors are watching all the hearings.”

Garland repeated his now-familiar response that the Justice Department will follow the law and the facts wherever they lead in its Jan. 6 investigations. But, apparently sensitive to criticism that the government isn’t doing enough, he gave a detailed explanation about why prosecutors don’t comment on ongoing investigations.

“We do that both for the viability of our investigations and because it’s the right thing to do with respect to the civil liberties of people under investigation,” Garland said. “Eventually that information comes out in the form of our search warrant affidavits, in our orders, and our pleadings and, eventually, if there are charges. But for our investigations to proceed in an efficient way, we have learned over many, many years that this is the way our investigations should go.”

But there are exceptions to this DOJ policy, in particular, when it is in the public interest to know that the DOJ is conducting  a criminal investigation to reassure the public.

Headline’s like this do NOT reassure the public that the DOJ is conducting a criminal investigation. Hutchinson Testimony Jolts Justice Dept. to Discuss Trump’s Conduct More Openly:

For the past year and a half, the Justice Department has approached former President Donald J. Trump’s effort to overturn the 2020 election results with a follow-the-evidence strategy that to critics appeared to border on paralysis — and that limited discussions of his role, even inside the department.

Then came Cassidy Hutchinson.

The electrifying public testimony delivered last month to the House Jan. 6 panel by Ms. Hutchinson, a former White House aide who was witness to many key moments, jolted top Justice Department officials into discussing the topic of Mr. Trump more directly, at times in the presence of Attorney General Merrick B. Garland and Deputy Attorney General Lisa O. Monaco.

In conversations at the department the day after Ms. Hutchinson’s appearance, some of which included Ms. Monaco, officials talked about the pressure that the testimony created to scrutinize Mr. Trump’s potential criminal culpability and whether he intended to break the law.

Ms. Hutchinson’s disclosures seemed to have opened a path to broaching the most sensitive topic of all: Mr. Trump’s own actions ahead of the attack.

Department officials have said Ms. Hutchinson’s testimony did not alter their investigative strategy to methodically work their way from lower-level actors up to higher rungs of power. “The only pressure I feel, and the only pressure that our line prosecutors feel, is to do the right thing,” Mr. Garland said this spring.

[O]vert discussion of Mr. Trump and his behavior had been rare, except as a motive for the actions of others, a subtle but significant change that was underway even before Ms. Hutchinson’s testimony.

A small team of prosecutors in the U.S. attorney’s office in Washington has ramped up its investigation into a scheme to install fake state electors, spearheaded by lawyers who were in frequent contact with Mr. Trump. And the Justice Department’s watchdog is investigating efforts undertaken by Jeffrey Clark, a former department official who discussed the plan with Mr. Trump, to undo the results of the election.

A flurry of recent subpoenas related to the electors inquiry and raids related to the inspector general’s investigation into Mr. Clark— which were done with the knowledge of the department’s senior leaders — suggest that those investigations are accelerating. At the very least, those moves indicate that prosecutors are inching closer to the former president.

The Justice Department does not publicly discuss details about continuing investigations or where they may lead, so as not to prejudice criminal proceedings or to imply that people are guilty before they are charged with any crime.

The policy, longstanding but more vigorously enforced recently, has infuriated critics, including President Biden, who accuse Mr. Garland of being too slow and cautious. The congressional committee looking into the attack, which resumes its public hearings this week, has used testimony, especially Ms. Hutchinson’s, to prod the department to move more aggressively.

Andrew Weissmann, a senior prosecutor in the special counsel’s investigation into Russian interference in the 2016 election, sharply criticized Mr. Garland’s “bottom up” investigative approach in a guest essay in The New York Times, saying the department should instead work from Mr. Trump’s speech to supporters on the Ellipse outward:

The tenacious work of the Jan. 6 committee has transformed how we think about the Jan. 6 rebellion. It should also transform the Justice Department’s investigation into efforts to overturn the 2020 election.

Before the hearings, federal agents and prosecutors were performing a classic “bottom up” criminal investigation of the Jan. 6 rioters, which means prosecuting the lowest-ranking members of a conspiracy, flipping people as it proceeds and following the evidence as high as it goes. It was what I did at the Justice Department for investigations of the Genovese and Colombo crime families, Enron and Volkswagen as well as for my part in the investigation of Russia’s interference in the 2016 election led by the special counsel Robert Mueller.

But that is actually the wrong approach for investigating the Jan. 6 insurrection. That approach sees the attack on the Capitol as a single event — an isolated riot, separate from other efforts by Donald Trump and his allies to overturn the election.

The hearings should inspire the Justice Department to rethink its approach: A myopic focus on the Jan. 6 riot is not the way to proceed if you are trying to follow the facts where they lead and to hold people “at any level” criminally accountable, as Attorney General Merrick Garland promised.

The evidence gathered in the hearings describes a multiprong conspiracy — what prosecutors term a hub and spoke conspiracy — in which the Ellipse speech by President Trump and the Jan. 6 attack on the Capitol were just one “spoke” of a grander scheme.

Vice Chair Liz Cheney’s (R-WY) said that Trump followed a “sophisticated seven-point plan” to steal the election. Here’s The 7-Part Plan The Jan. 6 Committee Says Trump Followed To Steal Power.

This broader approach would avoid the thorny debate that has emerged as to whether Mr. Trump could be criminally culpable for inciting the riot during his Ellipse speech or if, on the contrary, his speech is protected under the First Amendment and the evidence too ambiguous to justify the extraordinary step of indicting a former president. Building a criminal case that looks solely at the riot itself is far more complex legally and factually for those who weren’t at or in the Capitol. These challenges of the current bottom-up approach have led to criticism of the slow pace of the narrow Justice Department approach.

Instead, what the hearings have revealed is evidence of a plot orchestrated by Mr. Trump and his allies in the White House and elsewhere — including players from the Mueller investigation like Roger Stone, Michael Flynn and Rudy Giuliani as well as new players like Jeffrey Clark and John Eastman. The “spoke” of the Jan. 6 riot should be seen and investigated simultaneously with the other “spokes”: orchestrating fake electors in key states, pressuring state officials like those in Georgia to find new votes, plotting to behead the leadership of the Justice Department to promote a lackey who would further the conspiracy by announcing a spurious investigation into election fraud, and pressuring Vice President Mike Pence to violate the law.

Investigating the Jan. 6 insurrection in the context of the other means by which Mr. Trump appears to have sought to undermine the transfer of power serves to strengthen any future case by presenting the complete evidence of the perpetrators’ actions and intent. And it undermines possible defenses.

For instance, the evidence that Mr. Trump lied in a statement about Mr. Pence’s agreeing that he had the power to reject electors undermines the defense that Mr. Trump was acting in good faith and honestly believed he had won the election. And Mr. Trump’s conduct in the White House after his speech at the Ellipse and during the Jan. 6 attack, which includes remarks, reported from testimony by the former White House aide Cassidy Hutchinson, in which Mr. Trump condoned the chants calling for hanging of the vice president of the United States, is strong evidence of his intent for a plan to upend a democratic election.

There are signs that the department, spurred on by the committee, has begun to look into some of these other “spokes.” Unsurprisingly, the “spoke” involving the Justice Department itself has attracted acute interest. Recently, federal agents conducted a search of the home of Mr. Clark, whom Mr. Trump consideredelevating to be acting head of the Justice Department, and seizedthe phone of Mr. Eastman, a lawyer who advised Mr. Trump on efforts to overturn the election.

But other signs are not so encouraging: Department prosecutors were reportedly surprised by the testimony of Ms. Hutchinson. That is not a sign of a robust investigation into the facts. The department has more tools than Congress does to learn the truth. It could have interviewed Ms. Hutchinson long ago, as well as many others whose evidence is relevant — indeed, Ms. Hutchinson alone provided investigators numerous leads to pursue.

For those who do not voluntarily cooperate with a Justice Department investigation, prosecutors can serve grand jury subpoenas and obtain their testimony under oath, subject to criminal penalties like perjury — just as Georgia state prosecutors are doing. And people can be given immunity to compel their testimony if they validly assert the Fifth Amendment. Obtaining grand-jury testimony is indispensable; it forestalls witnesses from credibly claiming later that they had not made certain statements in an interview or that an interview report is inaccurate (or worse).

I have been involved in numerous high-profile investigations that engendered significant congressional interest, and what I have seen in this inquiry is not typical behavior from the Justice Department. Usually, department prosecutors and agents don’t want Congress jumping ahead of their investigation, and they work hard to make sure that doesn’t happen. The department wants to interview witnesses first, and prosecutors make sure that targets are fully truthful about their own potential wrongdoing and that their testimony is corroborated; use tools to flip recalcitrant witnesses; and build a case without revealing evidence to other prospective witnesses — efforts that can falter if Congress is conducting private and public interviews that may inadvertently undermine the strongest possible criminal case.

Department lawyers and congressional committees usually work collegially to avoid these issues, something that can happen when Congress has faith in the diligence and resolve of the Justice Department. That does not appear to be happening here. We have seen the unusual public filing of a letter from Justice Department leadership seeking access to committee evidence, something largely unnecessary if it had already obtained that evidence. And the fact that the letter was sent is a clear sign of a breakdown in the relationship between the two branches, something I did not see even during high-profile investigations like Enron and the Mueller investigation.

The American public is entitled to a thorough, fearless, competent and fair criminal investigation. That is still possible, and what facts that investigation reveals, and what prosecutorial decisions are made thereafter, will surely be subject to debate. But until we pursue all leads, that debate will be truly academic, to the detriment of our democracy.

Earlier this year, in a speech marking the first anniversary of the riot, Mr. Garland acknowledged, and dismissed, the criticisms. “We understand that there are questions about how long the investigation will take, and about what exactly we are doing,” he said.

His answer: “As long as it takes and whatever it takes for justice to be done — consistent with the facts and the law.”

He talks like a man who has the luxury of time to investigate. Time is running short, he must pursue the Coup Plotters at the top of the Coup d’état – which includes current Republican members of Congress – with the seriousness and speed that it requires. The election calendar does, in fact, set the parameters of his investigation into the Coup Plotters at the top of the Coup d’état.

The 147 Republican lawmakers who still objected to the election results even after the Capitol attack – the criminal aiders and abetters of the coup d’état – have already said that they plan to investigate the members of the January 6 Committee and to impeach the Attorney General. House GOP plot payback, plan to impeach Merrick Garland if they retake the House: report. If the American public is foolish enough to put criminals back in charge of Congress, this is what we can expect for the next two years – and Donald Trump will get a free pass from investigation by the DOJ.

Merrick Garland appears to lack the political good sense to realize that he is a target of an ongoing slow-motion insurrection by Republicans. He has a duty to defend the Constitution against these enemies of democracy.

If career prosecutors uncover evidence linking Mr. Trump to the crimes that they are investigating, new procedural hurdles make it more complicated for them to look into his actions. In 2016, rank-and-file F.B.I. agents did not need approval to investigate actions by Hillary Clinton and Mr. Trump. But Attorney General William P. Barr issued a memo that requires the attorney general, via the deputy attorney general, to approve such a move, which could place additional pressure on Deputy AG Lisa Monaco.

Unbelievably, Merrick Garland cites this policy from the most corrupt attorney general in American history in his memorandum to department lawyers.

As Laurence Tribe says, this means the buck stops with Merrick Garland.

Goddamnit man, start indicting the Coup Plotters now!