Merrick Garland's impossible decision on whether to prosecute Trump


It's not an easy choice, deciding whether or not Donald Trump should be criminally prosecuted for trying to overturn the 2020 presidential election. File charges, and there's a good chance the country erupts in the same kind of violence we saw on Jan. 6, 2021, when Trump supporters stormed the Capitol.
Let the former president off the hook, and the guarantee of impunity all but invites Donald Trump — or his imitators — to try again soon.
That's the challenge facing Attorney General Merrick Garland, who so far has been pretty restrained about going after the former president. But he won't be able to put off a decision for much longer.
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
On Wednesday, lawyers for the House committee investigating the Jan. 6 insurrection announced in a court filing that there is a "good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States." Evidence shows that Trump and his cronies "entered into an agreement to defraud the United States by interfering with the election certification process, disseminating false information about election fraud, and pressuring state officials to alter state election results and federal officials to assist in that effort."
That's a big deal.
"I cannot remember the last time a congressional committee accused a president — in a court filing — of committing felonies," wrote Neal Katayal, the former acting solicitor general under President Barack Obama. "This isn't loose talk, it is a solemn court document, subject to all sorts of sanctions for misrepresentations, and backed by evidence they have uncovered."
Wednesday's announcement isn't a criminal referral from the committee to Garland and the Justice Department. (The court filing came in a case attempting to pry loose documents from John Eastman, the lawyer who advised Trump's efforts to reverse the election.) But it is a sign that such a referral is likely — and might come soon. And then Garland will have to make a very public choice.
There are other good reasons why he might be hesitant. Garland will want to avoid mounting anything that looks like a politically motivated prosecution, no easy trick when charging a former president. Putting Trump on trial would probably be seen by Republicans as a precedent to use against future Democratic presidents, in much the same way there's a lot of talk now about impeaching President Biden following Trump's two impeachments. And don't forget that Trump himself has called for "major protests" — a phrase that seems like a barely-concealed euphemism after Jan. 6 — if prosecutors come after him.
The alternative, though, means there's no real reason for Trump not to try again. If there is no penalty for usurping an election, there's no defense against it — just easily ignored "norms."
That's not a great set of choices.
The first alternative might set off the kind of civil conflict that many observers have dreaded, testing our still-fragile democracy. The second leaves that democracy fragile. I think there's a case for ripping off the bandage, but nobody should pretend that approach is without dangers. Either way, the future of America will soon be in Merrick Garland's hands.
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
Joel Mathis is a writer with 30 years of newspaper and online journalism experience. His work also regularly appears in National Geographic and The Kansas City Star. His awards include best online commentary at the Online News Association and (twice) at the City and Regional Magazine Association.
-
Corruption: The road to crony capitalism
Feature Trump's tariff pause sent the stock market soaring — was it insider trading?
By The Week US
-
How 'China shock 2.0' will roil global markets
Feature An overflow of Chinese goods is flooding the global market. Tariffs won’t stop it.
By The Week US
-
Retribution: Trump calls for prosecution of critics
Feature Trump targets former officials who spoke out against him, sending a warning to future whistleblowers
By The Week US
-
El Salvador's CECOT prison becomes Washington's go-to destination
IN THE SPOTLIGHT Republicans and Democrats alike are clamoring for access to the Trump administration's extrajudicial deportation camp — for very different reasons
By Rafi Schwartz, The Week US
-
Supreme Court takes up Trump birthright appeal
Speed Read The New Jersey Attorney General said a constitutional right like birthright citizenship 'cannot be turned on or off at the whims of a single man'
By Rafi Schwartz, The Week US
-
Court slams Trump, senator visits Ábrego García
Speed Read The case 'should be shocking not only to judges' but all Americans with an 'intuitive sense of liberty'
By Peter Weber, The Week US
-
The anger fueling the Bernie Sanders and Alexandria Ocasio-Cortez barnstorming tour
Talking Points The duo is drawing big anti-Trump crowds in red states
By Joel Mathis, The Week US
-
Judge threatens Trump team with criminal contempt
Speed Read James Boasberg attempts to hold the White House accountable for disregarding court orders over El Salvador deportation flights
By Rafi Schwartz, The Week US