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Why Garland Should Go Big
He shouldn't bring a pen to the gun fight
“When you strike at a king, you must kill him.” ―Ralph Waldo Emerson
“Gentlemen. If you're going to take Vienna, take Vienna” ―Napoléon Bonaparte
Happy Tuesday. It may be August, but the news cycle is not taking a summer break:
Another one (Al Qaeda leader) bites the dust; Nany Pelosi heads to Taiwan amid this season of saber-rattling; a leading Capitol rioter gets 7 years in prison; voters in Arizona, Michigan, Washington, and Kansas head to the polls to choose their bat-shit crazy candidates, even as Trump trolls Missouri Republicans. And because the more things change, the more they stay the same, official Washington is waiting to hear from the Sphinx-like Kyrsten Sinema on the bill that is NOT Build Back Better.
Meanwhile, the wheels of justice continue to grind toward a decision about whether Donald J. Trump will be held criminally liable for any of his various criminal conspiracies.
So, let’s start the week with some very unsolicited advice for Attorney General Merrick Garland: If you are going after the Orange God King — Go Big.
While the investigations are clouded in wholly appropriate secrecy, we know the possible menu. Garland’s DOJ has the option of bringing charges that range from the relatively minor — the mishandling of government documents and the destruction of government-issued ketchup — to the political and legal equivalent of nuclear winter: a charge of Seditionist Conspiracy against a former president of the United States.
It is a target-rich environment. Other possible charges include 18 U.S.C §1512 obstruction of Congress; 18 U.S.C. §371, criminal conspiracy to defraud the United States; Obstruction of Justice; Solicitation to Commit Election Fraud, and Incitement to Violence.
The folks at Just Security have been keeping track of all of the criminal evidence unearthed by the various January 6 probes. It noted the 1/6 Committee’s list of Trump’s seven-part plan to commit fraud on the U.S. government by:
1. Engaging in a colossal effort to spread false and fraudulent information to the American public claiming the 2020 election was stolen from him;
2. Corruptly planning to replace the Acting Attorney General with Trump apologist Jeffrey Clark, so that the Department of Justice would substantiate his fake election claims;
3. Pressuring Vice President Pence to refuse to count or delay the counting of certified electoral votes in violation of the U.S. Constitution and statutory law;
4. Pressuring state election officials and state legislators to change election results;
5. Instructing Republicans in multiple states to create false electoral slates and transmit those slates to Congress and the National Archives;
6. Summoning and assembling a violent mob in Washington and directing them to march on the U.S. Capitol; and
7. As the violence was underway, ignoring pleas for assistance and failing to take immediate steps to protect the Capitol and stop the violence.
The case, in other words is both comprehensive and compelling.
Reviewing the record, Federal Judge David Carter wrote: “Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.
Referring to Trump’s legal Iago, John Eastman, the judge wrote: “Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history.”
“Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory,” the court ruled. “The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.”
So how will Garland’s DOJ make its decision? Failure to charge Trump with anything would essentially concede that current and former presidents are above the law.
But let’s stipulate several things: (1) The decision has to be based solidly on the law and the evidence, so the case will hold up in court and before juries; (2) This will be the most difficult and consequential decision the Department of Justice has made in decades; (3) The decision to charge/not charge the ex-president will create a monumental precedent; (4) There are considerable downsides either way, and, finally; (5) A decision to criminally charge Trump will be politically incendiary.
Since I am not a lawyer and do not play one even in morning newsletters, I will confine myself to that final point.
No one should be under any illusions about the blowback from indicting Trump. The political reaction would be intense and emotional and perhaps even violent. Trump himself has already called for “the biggest protests we’ve ever had” if he is hit with criminal charges. (Trump’ call to action prompted the Atlanta-area DA to ask the FBI for help with security.)
Trump’s threats were clearly meant to intimidate prosecutors and they may have some effect. Team Garland will undoubtedly weigh the possible fall-out from a Trump conviction/acquittal after the TRIAL OF THE MILLENIUM. They know the risks of bringing any charges they can’t prove beyond reasonable doubt in a court of law.
But they shouldn’t worry about the politics, because whatever they decide it will be awful.
And that’s why — if they decide to charge the former president — they should go as big as possible. If you shoot at the king, make sure you kill him.
What would “big” look like?
As former DOJ prosecutor Andrew Weissmann explained in his NYT op ed:
The evidence gathered in the hearings describes a multiprong conspiracy — what prosecutors term a hub and spoke conspiracy — in which the Ellipse speech by President Trump and the Jan. 6 attack on the Capitol were just one “spoke” of a grander scheme.
Weissmann urges Garland to pursue a full-fledged “hub and spoke” conspiracy case that ties together all the elements of the plot, not just the events of january 6:
Instead, what the hearings have revealed is evidence of a plot orchestrated by Mr. Trump and his allies in the White House and elsewhere — including players from the Mueller investigation like Roger Stone, Michael Flynn and Rudy Giuliani as well as new players like Jeffrey Clark and John Eastman. The “spoke” of the Jan. 6 riot should be seen and investigated simultaneously with the other “spokes”: orchestrating fake electors in key states, pressuring state officials like those in Georgia to find new votes, plotting to behead the leadership of the Justice Department to promote a lackey who would further the conspiracy by announcing a spurious investigation into election fraud, and pressuring Vice President Mike Pence to violate the law.
Garland may be tempted to imagine that prosecutorial restraint would be met by a relatively restrained MAGA response. This is, of course, utterly delusional, because in our politics today there is no proportionality.
Minor criminal charges will not spark a minor political reaction. Bigger charges are not actually more incendiary that middle-of-the-road charges because the rage meter is always dialed up to 11.
For the MAGA right, any charge — technical or major — will be a Flight 93 moment all over again.
So this is not a moment for the faint of heart or the naïfs who think they can bring a pen to a gun fight.
The law can teach as well as compel. Garland has a chance to place an exclamation point behind Trump’s seditious criminality.
Charging Trump with “conspiracy,” “fraud,” “obstruction,” and/or “incitement,’ would not move the MAGAites, but it would help educate millions of other Americans who might remember what it means to keep a Republic.
Meanwhile, in Michigan…
In a series of primaries that have been described as “messy” and “chaotic,” an array of far right MAGA Republican candidates are running for every level of elected office in Michigan [today]. Five Republicans who have embraced lies about a “stolen” election in 2020 are competing for the nomination for governor after five other candidates were removed from the ballot for committing ballot petition fraud themselves. Far right conspiracy theorists have already won the nominations for Attorney General and Secretary of State at the GOP convention earlier this summer, and more than 50 election deniers are running for state legislative seats in nearly every district in the state.
In Arizona’s primary, a host of far-right MAGA Republican candidates are running for nearly every level of elected office on lies and conspiracy theories—with plans to sabotage future elections. As part of their push for ‘reform’, Trump-endorsed primary candidates are proposing sweeping restrictions to ballot access. GOP primary candidates for Governor, Senator, Secretary of State, Attorney General, and even Treasurer are promising a return to 20th-century elections by replacing mail-in voting and electronic voting software with exclusively in-person, paper ballot elections.
Also: Keep on eye on this one: “Rusty Bowers testified in D.C. Now he might lose his primary in Arizona.”
Two of Tuesday's primaries in Washington state represent a key question for the Republican Party: 18 months removed from Donald Trump's second impeachment, has the GOP anger at party lawmakers who backed the effort subsided?
Primary voters will answer that question for Reps. Jaime Herrera Beutler and Dan Newhouse, two of the 10 House Republicans who joined Democrats to impeach Trump after the January 6, 2021, attack on the US Capitol. In the months since their votes, both have paid the price at home. They have been criticized by their state party, censured by local leaders and challenged by handfuls of Republican challengers.
In Missouri, Trump couldn’t make up his mind:
1. Don’t Look Away from the War Crimes in Ukraine
The reports of Russian atrocities and war crimes in Ukraine, which had been mounting steadily since the February 23 invasion, escalated dramatically last week. On Friday morning, more than 50 Ukrainian prisoners of war were killed, and 75 others wounded, by an explosion in a detention center near Olenivka, a town on Russian-held territory in the so-called “Donetsk People’s Republic” (DPR). While the Russians have blamed the Ukrainian military for the attack, there are many indications the Russian side is responsible. Two days later, top Ukrainian businessman Oleksiy Vadatursky, the head of the grain export company Nibulon, and his wife Raisa died in the shelling of Mykolaiv, a town near Odessa; Ukrainian authorities said that the Vadaturskys’ bedroom was directly struck, suggesting the use of a guided missile—which, if true, would make it a targeted hit. And, most shockingly, a grisly video circulated by Russian accounts on the Telegram social media network showed a Russian soldier severing the genitals of a Ukrainian POW with a box-cutter knife before shooting the victim in the head.
2. Joe Manchin’s Word Games
Manchin’s word games, on their face, are risibly transparent. Investment is spending, closing loopholes is raising taxes, and the Inflation Reduction Act is mostly a reassembly of ideas from Build Back Better. But Manchin’s tour of the talk shows did move one pivotal player: Joe Manchin. Now that he has forcefully defended the new bill, it will be that much harder for him to withdraw his support, as he did in negotiations over BBB. The salesman has closed the deal with himself.
2. About Those Dem Ads
Normal political chicanery? Or shoot-yourself-in-the-foot dumbassery? Tim Miller’s latest Not My Party:
Try imagine what John McCain would say about his son-in-law, Mr. Meghan McCain.