Talking Points

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.

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.