'The Situation: In Defense of Merrick Garland' [View all]

https://www.lawfaremedia.org/article/the-situation--in-defense-of-merrick-garland

My words: Let's look at the facts and see where they lead us. Please be polite to each other, and please don't shoot the messenger. Please note that the bold is mine.

'The case against Garland is that he did not act fast enough, that the Justice Department should have opened an investigation against Trump immediately upon his leaving office, and that had it done so, Trump would have been convicted and we would not be where we are today...

Imagine for a moment that the Justice Department had moved at breakneck speed. What is the earliest we can reasonably hypothesize that they might have been ready to bring a case before a grand jury? The case was, in fact, filed in August 2023, a little more than two-and-a-half years after Trump departed the White House...

But let’s imagine for a moment that the Justice Department had managed to get an indictment done and filed within a year after Trump left office, which is to say Jan. 20, 2022. This is, roughly speaking, a year and a half earlier than it managed the task in fact...Would things have been different? The answer seems to me pretty clearly not.

For starters, we know exactly how the first year plus would have played out—because there is no reason to imagine it would have been any different from the time since August 2023. Trump would have asserted presidential immunity, the same as he did, in fact....Imagine that this process ate up just under a year, just as it actually did. So now in our hypothetical world it’s late 2022 or early 2023, and we are roughly where we are now in the litigation.

So even if this case were not about to go away and Trump were not about to become president, do you really think we’d be done with trial a year and half from now?... In fact, we’d be lucky to be done at the D.C. Circuit Court of Appeals by then..

Garland and Monaco’s pokiness—even assuming it was real and not merely optical—was not the rate-limiting step. It was not the factor that prevented Trump from facing conviction before the election. The rate-limiting step, rather, was the onerous set of conditions the Supreme Court put in the way of a president facing trial for Jan. 6 or any other conduct that took place while he was in office.

To be clear, I am not saying that the investigation was handled with optimal speed. And I have a lot of questions about a number of choices regarding both the Jan. 6 investigation and the classified documents case. .. All of these questions, including the speed question, are legitimate.

But the search for an explanation for Trump’s election in the individual decisions of law enforcement figures is wrongheaded. Donald Trump didn’t get elected in 2016 because of Jim Comey, and he didn’t get elected this year because of Merrick Garland either. The sooner we stop looking for investigative “but for” explanations in the justice system and start facing the reality of his attraction to tens of millions of people, the sooner we can hope to begin counteracting those attractions.'