Get it yet? The point of the raid on Mar-a-Lago and the January 6 hearings is all about one man. Nope, not Donald Trump: Merrick Garland. Either the FBI is trying to get Garland to indict Trump for something, and failing that to indict the highest ranking person near Trump, or Garland is already on the case himself.
The reason for this is that nothing else worked. Democrats pointed the full national security apparatus at Trump, with the FBI doing yeoman-like work. They turned Robert Mueller loose with unlimited resources for a full year, going as far as to suggest Trump had obstructed an investigation that found him innocent. Alice in Wonderland stuff, that.
After wading through reams of FBI investigative malfeasance to include but not limited to lying to get FISA warrants and accepting an obviously wholly fictitious dossier as fact for months, Mueller could not find a single issue worthy of bringing to an actual court. So Democrats impeached Trump twice, one of which was little more than a policy difference over Ukraine. The aggressive Southern District of New York was unleashed on Trump’s finances and real estate work, given a grand jury to take testimony, and still came up with nothing indictable. And that’s leaving aside the reality that the IRS has had Trump’s full tax records for decades of audits and again came up with nothing indictable.
Dems’ whole remaining strategy for 2024 is to make people believe Trump does not support American democracy. Propaganda/journalism/TV hearings failed to sway many minds. To succeed, it’s going to require something real, an actual court finding Trump actually guilty of an actual crime that meets the expectations set after flinging around words like “treason” and “sedition” like angry monkeys. Some goofy tax problem in a state court or empty process crime will not be enough. It is hard to imagine Trump taking with him some classified documents will be enough, despite the high-profile raid on Mar-a-Lago.
With the Democratic midterm massacre scheduled for November, Dems know they now have about twelve weeks left to indict Trump or someone near him. Republicans are already drooling over the prospect of shutting down the FBI and the J6 Headline Committee Machine and opening their own investigation into Hunter and Joe Biden’s financial tomfoolery in Ukraine and China. So it is now or never for the Last Man Who Can Trump Trump, Merrick Garland.
Appointed attorney general by Joe Biden, many Dems expected Garland to be an angry beast of a prosecutor. After all, the only reason he does not now sit on the Supreme Court (he might have saved Roe!) was that Republicans refused to allow him a Senate hearing. The unfairness of it all is supposed to be eating at him, readying him to slash Trump at the knees.
Instead he seems lost in a kind of Jeffersonian zen state, promising to follow the law and respect the civil liberties of all. Throughout an interview’s worth of softball questions on NBC Nightly News, Garland sounded more like Mr. Rogers than a prosecutor. Yes, the DoJ is investigating Trump, et al, alongside the J6 Committee. Yes, it’s a criminal investigation; that’s what the DoJ does. No, he has not decided to prosecute because all the information is not in. No, it doesn’t matter that Trump is a former and maybe future president; the law is blind to that. Listeners were left waiting for him to say “Anything else troubling you, young fella?”
What of the Mar-a-Lago raid? Either Garland, who appears publicly reluctant to prosecute Trump, was not involved in approving it at all and the FBI went rogue, or Garland against his better judgment was pressed to sign off. Early reporting suggested the former, with the raid placed at the feet of FBI director Christopher Wray. In a very brief Thursday press conference, Garland said that he “personally approved the decision to seek a search warrant.” Yet either way, the raison d’être is that despite all the cries about democracy under attack, there seems little to indict Trump over. The original Great Dem Hope, incitement (often expressed as treason or sedition by pundits), is not mentioned much anymore. Among other problems, incitement requires a showing of intent — that the speaker wanted the crowd to attack the Capitol — and Trump’s own words fall far short.
The idea that Trump spoke and the mob rioted seems attractive (one thing followed another so they must be related, right?) but it does not meet any legal test worthy of actual indictment. Merrick Garland knows that, even if Liz Cheney pretends she does not. The J6 people and FBI raiders can pitch a criminal referral but that changes nothing for the man who has to actually decide if there is anything legally actionable he can take to court. It’s the gap on display between no standards and very high ones. It’s very unclear whether anything Trump took with him to Mar-a-Lago would rise to the level of indictment after he blamed the staff and the movers for inadvertently packing the wrong stuff. The unsealing of the warrant may offer answers.
What will be left for Garland is some sort of charges of conspiracy to defraud the United States. This would have to take the form of persons planning to set in motion some sort of process which would have negated or at least scrambled the results of the 2020 election sufficiently that Trump could have claimed a victory and seen what happened next.
Any indictment, if it comes at all, will probably not include Trump, who, like any client, is not responsible for what his lawyers (or the movers) said or did. Instead, Trump lawyers John Eastman and Jeffrey Clark will likely bear the brunt of any legal opinions rendered, while the press and Dems try to transfer the stain off of them and onto Trump.
Both men recently were aggressively served with search warrants a la Mar-a-Lago. Both men came up with complex schemes to negate the 2020 election, with no chance of success, just to placate their client. Eastman mumbled about old election law to “spin a yarn” based on speculative vote-fraud suspicions. Clark said that even though the Justice Department found no evidence of voter fraud, the fact that it was still investigating while Trump’s campaign claimed other election irregularities could be used to nudge contested states into auditing their elections.
If Garland is pressed to indict Eastman and Clark, he’ll face accusations that his jurisprudence is politically motivated. He’ll also face practical problems such as seating an unbiased jury. But if he thinks the cases will lead him to Trump, he’ll hit a stone wall. Trump’s interactions with his lawyers — the stuff that can reveal intent and state of mind — are protected by both attorney-client privilege and executive privilege, plus any claims of presidential immunity. These will cover nearly every official who directly interacted with Trump. Garland could easily find himself facing a Supreme Court fight over the limits of such privilege, which would run past 2024.
As for the work of the lawyers themselves and their possible indictment, Orwell would call what they might be accused of thoughtcrimes. The legal advice was frivolous. It had no connection to the riots. It was never acted on. It is unclear what impact the opinions made anywhere, even on Trump himself. In any normal world, drafting a legal memo is hardly a crime. Yet it just might prove barely enough to bring an indictment against Trump’s lawyers and minimally satisfy the Democrats’ bloodlust.
The hope is that this indictment will stick to Trump and that — that — will dog him into defeat where everything short of shooting someone on Fifth Avenue has not. Call it a long shot.