A plea to Merrick Garland for the future of our republic
The Biden administration is enabling Republican lawlessness by refusing to prosecute Trump
After months of dithering and legal wrangling, the Jan. 6 committee finally came up with some new material: texts from former President Donald Trump's final chief of staff, Mark Meadows. For hours, as a violent mob stormed the Capitol, Fox News hosts, various Republican members of Congress, Trump's own administration officials, and even Donald Trump, Jr. texted Meadows begging him to get the then-president to call off his goons. As Chris Hayes notes at MSNBC, it demonstrates that everyone knew Trump was behind the putsch — he had whipped up the mob, and he was the only one they'd heed.
Unfortunately, this revelation of embarrassing text messages seems to be all the accountability in store for Trump and his cronies. The Biden administration, especially Attorney General Merrick Garland, is enabling Republican lawlessness through its pathetic unwillingness to prosecute Trump and all his cronies for their crimes against democracy.
It's not as if prosecution would be doomed on a technicality. As Barton Gellman writes at The Atlantic, we have evidence of a coherent strategy to reinstall Trump in power, however hapless the plot was in execution.
First, they tried to reverse the election results at the state level, lying about voter fraud, filing dozens of preposterous lawsuits, and trying to bully state officials, like Georgia Secretary of State Brad Raffensperger (R), into rigging the count. (Remember, we have Trump on tape with Raffensperger explicitly demanding changes to the vote totals.)
When that didn't work, Trump and top allies like Rudy Giuliani sicced a violent mob on the Capitol building to try and halt the election certification.
They also planned, as outlined by Trump lawyer John Eastman, to get Vice President Pence to declare Trump president through a nonsensical reading of the election rules. The mob's chant of "hang Mike Pence!" was because he planned to respect the election results.
Meanwhile, others plotted to get Republican-controlled state legislatures to submit new electors. Rep. Jim Jordan (R-Ohio) reportedly texted Meadows personally endorsing the Pence strategy, and another as-yet unnamed GOP member of Congress texted him suggesting the state legislature idea.
All this is extremely illegal. In 18 U.S. Code § 2383, penalties are set out for rebellion or insurrection: "Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof" can be fined and imprisoned for up to 10 years, as well as permanently banned from holding any federal office.
The following § 2384 deals with seditious conspiracy: "If two or more persons in any State or Territory ... conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States" they can be fined and imprisoned for up to 20 years.
I am not a lawyer, but if these two statutes (and many others besides) do not cover what Trump and his associates did from Election Day 2020 through Jan. 6, words have no meaning. They tried to overturn an election through bullying, legal trickery, and eventually violence, in the plain view of the public, so as to cling to presidential power. There is no graver crime against the basic foundation of a democratic republic.
Yet no such charges been filed against Trump, Meadows, Rep. Paul Gosar (R-Ariz.), or any of the dozens of others who directly participated in the putsch and the attempted paperwork coup. (Not even those who breached the Capitol are being charged with insurrection or sedition. Every single case so far has been for trespassing, assault, or other fairly minor offenses.) Garland and the FBI plainly can't bring themselves to believe Trump really committed these crimes. The shock troops are getting slapped on the wrist. The leaders are getting off scot-free.
Garland's indication that he won't enforce laws against sedition and insurrection is already having toxic effects downstream. After the putsch, a number of big businesses announced that they would no longer donate to Republican politicians that voted to overturn the election. But a few months later, they quietly resumed donations.
Of course, one reason for this is a total lack of principle. But a more important reason is Garland's refusal to prosecute. Leaders of these corporations likely assumed that Trump, for once, wouldn't get away with it, so they figured they'd cut him loose and burnish their reputations without suffering backlash. But the liberal establishment did let him get away with it, just like he got away with breaking gambling laws, construction contracts, and inheritance tax laws.
So now corporations are hedging their bets. Trump tried to seize power by force; he and his party are plotting in plain sight to do it again; and the opposition party controlling the federal law enforcement apparatus isn't lifting a finger to stop him. Any rational business owner would want to stay on the right side of a deranged, vindictive criminal who stands a very strong chance of becoming president again.
One often hears an argument from establishment organs like Lawfare that it's bad to prosecute former presidents because that's what disgusting "banana republics" do. In reality, presidential impunity from legal accountability is the dictionary definition of corruption. Plenty of wealthy countries (like South Korea, France, and Iceland) have prosecuted former political leaders for breaking the law, setting a salutary example, with no ill effect.
And, in any case, if Biden or Garland think Donald "lock her up" Trump will show them the same deference if he seizes power, they have another thing coming. He'll put them behind bars for the rest of their lives if he can.
If I were them, I would take the rule of law and Trump's manifold crimes seriously now. File charges tomorrow, and keep him out of office forever.