Merrick Garland’s Playing It Right

Hey,

Here’s a general rule of thumb (it’s not an iron law or anything, just a good practice when it comes to media consumption): If a headline counts as a bombshell, ask yourself whether it would still be a bombshell if the opposite were true.

For instance, “Scientists Invent Faster Than Light Travel,” or “NASA Discovers Intelligent Life on Mars” would be big news. But “Scientists Still Can’t Crack Faster Than Light Travel” or “NASA Mission Reports Lifeless Rocks Found on Mars” wouldn’t be that big a deal.

Now consider this headline that popped up pretty much everywhere:

• Axios: “Merrick Garland: DOJ won’t rule out prosecuting Trump”

• National Review: “Merrick Garland Won’t Rule Out Prosecuting Trump over January 6”

• Fox News: “AG Garland refuses to rule out prosecuting Trump for Jan. 6”

• CNN: “Merrick Garland does not rule out charging Trump and others in January 6 probe”

(Full disclosure: The Morning Dispatch didn’t use the “doesn’t rule out” formulation in a headline, but it does appear in a small item.)

Ask yourself: What if it was the opposite headline? “Garland Rules Out Criminal Charges of Trump,” or, “AG Refuses to Consider Criminal Prosecution of Trump.”

I would argue—heck, not only would I argue it, I’m literally arguing it right now—that this would be a much bigger story. In other words, if Garland said that he would not even consider pressing charges against Trump regardless of what his investigators found in a still-ongoing inquiry, that would be a huge deal. “Yes, yes, we found a video of him bludgeoning a nun with a frozen Trump steak and eating her pancreas, but we already ruled out pressing charges regardless of what evidence we turned up.”   

In other words, Garland said exactly what he was supposed to say. In fact, he had no choice but to say it.

By the way, here’s what he actually told NBC News’ Lester Holt last night. “We pursue justice without fear or favor. We intend to hold everyone—anyone—who is criminally responsible for the events surrounding January 6 or any attempt to interfere with the lawful transfer of power from one administration to another accountable. That is what we do. We don’t pay any attention to other issues with respect to that.”

Within the four corners of what he actually said, I am hard pressed to understand how this is big news.

Now, I’m no babe in the woods; I get why everyone is treating it like its big news. First of all, we’ve spent months listening to legal and political pundits talk about a potential “criminal referral” from the January 6 committee.

Once more on criminal referrals.

A quick aside: As I’ve been arguing for a while, I think this a silly and dangerous way to talk about the committee’s work. As Garland reiterated yesterday, a criminal referral from the committee is not a significant factor for the DOJ because they are already conducting an investigation. “We will have the evidence that the committee has presented and whatever evidence it gives us,” he told Holt. But he added, “We have our own investigation, pursuing through the principles of prosecution.”

In other words, he’s saying, “By all means send us whatever you dig up, but we’ll decide whether to prosecute based upon our rules, not your say so.” What else is the attorney general supposed to say? I think the complaints about the structure of the committee have merit but they’re also overblown. What would make the (highly partisan) complaints about the committee’s partisanship far more problematic is if the DOJ were seen as launching an investigation solely because the committee told it to. The president’s defenders would be able to say the investigation was the fruit of a one-sided inquiry, and that would undermine the DOJ’s efforts profoundly. Most people understand that the DOJ shouldn’t be the private plaything of a president to unleash on his enemies. The same principle applies to Congress, never mind a single congressional committee.

DOJ investigations, how do they work?

Okay, back to my point. The second reason Garland’s comments were overblown is that they followed a Washington Post story from earlier in the day Tuesday: “Justice Dept. investigating Trump’s actions in Jan. 6 criminal probe.”

“The Justice Department is investigating President Donald Trump’s actions as part of its criminal probe of efforts to overturn the 2020 election results,” the story begins, “according to four people familiar with the matter.”

A couple paragraphs in we’re told:

The prosecutors have asked hours of detailed questions about meetings Trump led in December 2020 and January 2021; his pressure campaign on Pence to overturn the election; and what instructions Trump gave his lawyers and advisers about fake electors and sending electors back to the states, the people said. Some of the questions focused directly on the extent of Trump’s involvement in the fake-elector effort led by his outside lawyers, including John Eastman and Rudy Giuliani, these people said.

To paraphrase several lawyers I have spoken to: “Well, duh.”

How in the world is the DOJ going to conduct an investigation into the events leading to January 6 without asking witnesses about Trump? Prosecutors looking into a potential conspiracy or scheme or effort (choose whatever word you want to use) to flip the election results in Trump’s favor have to ask questions about Trump’s actions. What kind of investigation into such an alleged effort wouldn’t ask questions about the primary alleged beneficiary of the effort?

Think of it this way. Let’s say you think Trump is 100 percent innocent of everything. You’d still want DOJ lawyers to ask such questions! Why? Well, presumably because you think a thorough investigation would clear him. That’s why innocent people sometimes say, “I welcome this investigation because I know it will clear my name. I did nothing wrong. The facts are on my side.”

I hardly think the Post story is a nothingburger, but it’s worth noting that the “four people familiar with the matter” are almost surely witnesses or, more likely, their lawyers. It’s extremely unlikely that DOJ prosecutors gave this story to the Post. So that means a few witnesses and/or their lawyers wanted it known that prosecutors were asking about Trump. And just as with the “Garland Rules Out” headlines, the much bigger story would be if the prosecutors refused to ask any questions about Trump. That would be outrageous and outrageously weird.

What is the news here? It really isn’t that witnesses were being asked questions about Trump, but that some of the witnesses wanted everyone to know they were being asked about Trump. That’s interesting, but what’s interesting isn’t particularly important or newsy as a legal matter. It’s important as a political matter.

There’s lots of plausible speculation that this story came from Pence’s camp. Again, that would be interesting. But we’ll save the punditry about that for another time. (As unlikely as I think it is, it’s conceivable that someone in the Biden administration wanted this information out to signal to angry Democrats that their demands for a criminal prosecution are being heard.)

The feeding frenzy starts up again.

What I think is worth dwelling on is that we’re witnessing the beginning of a new round of media obsession that’s getting way out ahead of the facts. You can feel the air getting thick with soupy groupthink, and you can hear the motivated reasoning humming in the background whenever you turn on MSNBC.

Look, I’ll admit my (very) obvious biases. I think Trump is guilty of trying to steal the election. There are few things I’d like to see more than Trump go away. So I get why a lot of folks in the media want to see a criminal probe of Trump. Even among reporters and editors capable of keeping their political biases in relative check, there are other incentives to go bananas about this story. It’s a big deal. Bob Woodward has gotten fabulously famous and wealthy because of his Watergate coverage, and two generations of journalists have been raised on Woodward-envy.

Then there’s the fact that most people not entirely enthralled to Trump or to hyper-partisanship understand that the guy is basically guilty. Reasonable people can argue whether his culpability is provable; never mind sufficiently provable as to clear all of the legal and political standards necessary for a criminal prosecution or conviction. Even most “move on” conservatives quietly concede that Trump did bad things—they just don’t want to talk about it or do anything about it.  

It’s fine if you want to argue with me about that; my only point here is that it’s true of virtually the entire press corps and every inside-the-beltway Democrat. When (some) cops know the perp did the crime, they take a different approach to proving his guilt because the compulsion to consider contradictory evidence weakens. The same goes for journalists. Sometimes such confidence is a huge problem because it turns out to be misplaced (see: Dan Rather beclowning; subsection Memogate).

I’m honestly torn on the question of prosecuting Trump—even if the DOJ nails him dead to rights—for many of the reasons Damon Linker lays out here. On the one hand, even if it can be proven beyond a reasonable doubt, it’s a terrible precedent to let a former president get away with what I firmly believe Trump did. On the other hand, prosecuting a former president is a terrible precedent as well. It’s even worse if he runs in 2024, because any criminal investigation of a presidential candidate/nominee is fraught. And if he wins, I shudder to think of the 360-degree fecal spray the country would be subjected to. As of now, it’s settled policy not to indict sitting presidents. Leave that policy in place: Get your crapstorm poncho out. Repeal it: Grab an extra umbrella.

Because Trump has not an iota of concern about the welfare of this country if it comes at the cost of his ego, he’s perfectly willing to throw the country into turmoil by running again and daring the DOJ to prosecute him. That’s unpatriotic and grotesque.

I have no idea what the best path out of all these potential messes is.

But what I am sure about is that nothing is gained by ginning up expectations and hysteria beyond the facts. That’s as true of Donald Trump and all of his witch hunt B.S. as it is of the mainstream media. The Russia collusion story wasn’t the hoax his defenders claim, but neither was it the “doors are closing on Trump” fantasy that so many of his opponents wanted it to be. One thing reasonable people in the pro, anti, and anti-anti-Trump camps can agree on is that that episode did a lot of damage to our politics. Politicians and journalists got too invested in the narrative they wanted to be true (or wanted the “little people” to believe) and got way ahead of facts and logic.

However this stuff plays out, we’d all be better served if everyone took a breath and didn’t greet every new revelation as proof “we” were right all along. I always like to tell young’ns that there’s no prize for winning the race to be wrong first. The problem in the current social media and small-donor–fueled attention economy we live in is that there are actually prizes for being wrong.

All the more reason for the rest of us to be extra careful about jumping into that game with both feet just because we know we’re right.