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.
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.
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
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.
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.
-
Fannie Flagg’s 6 favorite books that sparked her imagination
Feature The author recommends works by Johanna Spyri, John Steinbeck, and more
-
Google: A monopoly past its prime?
Feature Google’s antitrust case ends with a slap on the wrist as courts struggle to keep up with the tech industry’s rapid changes
-
Patrick Hemingway: The Hemingway son who tended to his father’s legacy
Feature He was comfortable in the shadow of his famous father, Ernest Hemingway
-
Supreme Court: Will it allow Trump’s tariffs?
Feature Justices fast-track Trump’s appeal to see if his sweeping tariffs are unconstitutional
-
Venezuela: Was Trump’s air strike legal?
Feature A Trump-ordered airstrike targeted a speedboat off the coast of Venezuela, killing all 11 passengers on board
-
3 killed in Trump’s second Venezuelan boat strike
Speed Read Legal experts said Trump had no authority to order extrajudicial executions of noncombatants
-
Is Kash Patel’s fate sealed after Kirk shooting missteps?
TODAY'S BIG QUESTION The FBI’s bungled response in the immediate aftermath of the Charlie Kirk shooting has director Kash Patel in the hot seat
-
Russian drone tests Romania as Trump spins
Speed Read Trump is ‘resisting congressional plans to impose newer and tougher penalties on Russia’s energy sector’
-
Trump renews push to fire Cook before Fed meeting
Speed Read The push to remove Cook has ‘quickly become the defining battle in Trump’s effort to take control of the Fed’
-
Will Donald Trump’s second state visit be a diplomatic disaster?
Today's Big Question Charlie Kirk shooting, Saturday’s far-right rally and continued Jeffrey Epstein fallout ramps-up risks of already fraught trip
-
Air strikes in the Caribbean: Trump’s murky narco-war
Talking Point Drug cartels ‘don’t follow Marquess of Queensberry Rules’, but US military air strikes on speedboats rely on strained interpretation of ‘invasion’