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Claiming Merrick Garland can't prosecute Trump is ill-conceived at best

Some legal commentators argue that the Justice Department could have a conflict of interest because prosecuting Trump could appear to be political.

The House Jan. 6 committee just heard testimony Thursday about how former President Donald Trump exerted enormous pressure on the Justice Department in December 2020 and early January 2021 to declare the presidential election “corrupt;” a bid that, if it were successful, would have secured the Justice Department’s legal blessing for a coup, keeping Trump in power for at least four more years. This is part of a horrific chain of events leading up to the insurrection of Jan. 6, 2021, and crimes were almost certainly committed, but the House Committee cannot prosecute anyone. That is a job for the Justice Department.

There is no evidence that Biden or anyone in the Biden White House is pressuring Garland to make this prosecutorial decision one way or the other.

Among the many perceived obstacles to the Justice Department’s prosecuting Trump is the ill-conceived argument that Attorney General Merrick Garland has a conflict of interest because he is a political appointee of President Joe Biden, Trump’s opponent in the 2020 election.

This argument is wrong, for several reasons.

First, Garland’s personal interest is insignificant, other than the personal interest that we all have as Americans in ensuring that nobody, particularly a president, is above the criminal law. Garland did not himself run against Trump in the 2020 election, and there is no evidence that Biden or anyone in the Biden White House is pressuring Garland to make this prosecutorial decision one way or the other.

One of the more disturbing aspects of this discussion is that some legal commentators argue that the Justice Department could have a conflict of interest because prosecuting Trump could appear to be political, but then these same skeptics turn around and argue that other political considerations weigh against the Justice Department’s prosecuting Trump because a prosecution would divide the nation and inflame Trump’s supporters. Jack Goldsmith, a Justice Department official in President George W. Bush’s administration, appeared to suggest this in a New York Times op-ed this week.

In other words, it is bad if politics appears to motivate prosecution of a former president — but the Justice Department could consider politics in deciding not to prosecute a former president.

Again, this is wrong. The Justice Department should not consider politics on either side of the prosecutorial decision. A current or high-ranking public official who commits a serious crime should be prosecuted just like anyone else. Being a supporter or an opponent of the current president or a former president is irrelevant to whether one has committed a crime. It is essential to a well-functioning democracy that political allegiance or animus be irrelevant for prosecutorial decisions.

This is very different from Attorney General Jeff Sessions’ position in 2017, when he was recused from the Russia investigation. Sessions was a key adviser to Trump in the 2016 election, sat at a table with campaign advisers when they discussed the Russians and himself had met with Russians, although he conveniently forgot that fact when he was asked about it under oath in his Senate confirmation hearing.

In that scenario, Sessions clearly had to recuse himself from the Russia investigation under the federal Office of Government Ethics impartiality rule, 5 CFR § 2635.502, as well as conflict of interest rules for lawyers.

If the Justice Department plays politics with a Trump prosecution, not only Garland’s reputation but also those of many of his Justice Department associates would be in ruins.

Garland, by contrast, has been a federal judge for decades and was not involved in any political campaigns, including the 2020 election. He never disclosed publicly whom he voted for in that election or any other. Except for Trump’s efforts to obstruct the Jan. 6 committee’s or the Justice Department’s investigation of Jan. 6, 2021, all of the events that could be the subject of federal prosecution of Trump occurred before Biden appointed Garland as attorney general. In this case, there is simply no reason for Garland to recuse.

Indeed, after a distinguished career on the federal bench, Garland has a lot to lose by way of reputation if he or anyone else in the Justice Department plays politics with a Trump prosecution. Any Justice Department discussion of the matter with White House political advisers or any other political operatives is sure to come to light. Justice Department records in this administration must be preserved under federal law, and eventually they will fall into the custody of a future administration that could and probably would expose any improper political involvement in a prosecution of Trump or any of his associates. If the Justice Department plays politics with a Trump prosecution, not only Garland’s reputation but also those of many of his Justice Department associates would be in ruins.

Second, the Justice Department has lots of career employees to rely upon to make prosecutorial decisions about Trump’s conduct before and after the election. These decisions include the determination of whether Trump’s conduct amounted to sedition when he contemplated using the military to overturn the election in December 2020 and then incitement of insurrection on Jan. 6.

There is also a wide range of other criminal charges that should be considered in connection with conduct before and after the 2020 election. Potential charges include extortion and solicitation of a bribe (the 2019 Ukraine plot for which Trump was impeached the first time), solicitation of election fraud in November 2020, obstruction of an official proceeding (the Jan. 6, 2021, counting of electoral votes by Congress), fraud against the U.S., coercion of political activity by federal officials before and after the 2020 election and false statements to federal officials. In connection with each of these potential charges against the former president and his associates, the Justice Department has a wide range of career prosecutors who can and should be consulted. The attorney general need not, and should not, make decisions that overrule the recommendations of these career Justice Department officials, who will be expected to carefully apply the charging criteria in the Justice Department manual. But if the career Justice Department prosecutors recommend prosecution, the attorney general’s job is to authorize them to prosecute.

Third, under the same regulations the Trump Justice Department used to appoint Robert Mueller in 2017, Garland can appoint a special prosecutor to oversee criminal prosecutions of Trump or any other high-ranking officials from the previous administration. (He is not required to appoint a special prosecutor, but he has the power to do so if he believes one or more prosecutorial decisions require the additional layer of independence assured under the special prosecutor regulations.) Last year, I called for the Justice Department to appoint a special prosecutor to investigate crimes Trump and others allegedly committed in seeking to overturn the election, and that can still be done.

Once again, the decision about whether or not to prosecute a former president is a legal decision, not a political decision. The Constitution provides for one and only one legitimate way for politics to determine a prosecution decision: the pardon power. A president who believes prosecution of his predecessor would do grave political damage and divide the nation can pardon his predecessor. President Gerald Ford did just that in 1974 with the Nixon pardon. Ford could have tried to sidestep this highly unpopular pardon and improve his chances for re-election by instead directing his Justice Department not to prosecute Nixon, but he did not. The Justice Department under Ford and Attorney General Edward Levi, unlike the Nixon Justice Department, valued prosecutorial independence.

Levi did not let Ford off the hook by usurping for himself a political decision not to prosecute Nixon that could properly be made only by the president through the pardon power. Whatever one thinks of the Nixon pardon, Ford owned up to the decision, and he was willing to pay the political price for it when he lost the 1976 presidential election. Ford carried out a political decision not to prosecute the way the founders intended.

Many Americans would strongly oppose Biden’s granting a pardon to Trump, but that is his decision, not Garland’s. Pardon is the only proper mechanism the Constitution provides for politics to enter federal prosecutorial decisions.

In sum, it is critical that Garland do the job that he was sworn to do — to uphold the law. If serious crimes are committed by anyone, those crimes should be prosecuted. Politics is not an exception to the criminal laws of the U.S. Powerful people, including presidents and former presidents, are subject to prosecution just like anyone else who commits a crime.

Garland should proceed with respect to Trump as recommended by career Justice Department prosecutors. If he believes he needs to appoint one or more special counsels to investigate and make prosecutorial decisions, he should do so. The one thing Garland cannot do is decline to enforce the law when he is sworn to uphold it.