There are days when Merrick Garland must regret that Republicans blocked his Supreme Court nomination in 2016. Instead of leading a peaceful, wise existence, the Minister of Justice finds himself immersed in a political maelstrom. He must decide in the coming months whether to launch legal proceedings against Donald Trump. Which would be a first for a former Oval Office tenant.
And incredibly, he has to make this decision twice because the former president is involved in two cases. He took away from the White House, boxes of documents, among which hundreds of pages classified top secret which would notably include the names of spies working for the Americans. Besides the fact that it is hardly reassuring that such sensitive information ends up at Mar-a-lago, his Florida golf club, all official documents must, by law, be entrusted to the National Archives.
Faced with Donald Trump’s resistance to parting with it, Merrick Garland took the extraordinary decision in early August to authorize the FBI to search Mar-a-lago. The former president is potentially guilty of several crimes including obstruction of justice punishable by twenty years in prison. “This is the most serious legal threat to him in years. His opponent this time is the Department of Justice, the largest law firm in the United States, and he no longer has control of it like when he was in power,” said New York University law professor Stephen Gillers.
Meanwhile, Merrick Garland is overseeing a massive investigation into attempts to tamper with the 2020 election and the attack on the Capitol on January 6, 2021. Nearly 900 rioters have already been indicted. Always discreet, the team of prosecutors did not reveal whether it had opened an investigation into the former president, but it is clear that it is more and more interested in his role around this date.
“No one is above the law”
This is not good news for Donald Trump. Aged 69, Merrick Garland is a tough opponent. A graduate of Harvard, this brilliant jurist father of two daughters worked as a business lawyer in a prestigious firm which he left to become a prosecutor. Recruited to Justice under Bill Clinton, he was in charge of big cases including the Oklahoma City terrorist attack in 1995 which killed 168 people, and that of the Atlanta Olympics. He then served for nearly 25 years as a federal judge before being appointed in 2016 by Barack Obama to the Supreme Court. But the Republican senators, in an unprecedented maneuver, refused to consider his candidacy. They hoped – rightly – that Trump would win the election and appoint a conservative judge. Four years later, Joe Biden offered him a ministerial portfolio.
And Merrick Garland finds himself today in a legal duel at the top. Even though this discreet gentleman who speaks in a hushed voice repeats that “no one is above the law,” and that he intends to prosecute anyone who “interfered in the legal transfer of power”, he is faced with in quite a dilemma. “He has an almost insurmountable task”, summarizes Stephen Gilles. On the one hand, its function is to enforce the law. If it does not, it sets a dangerous precedent. On the other hand, he is well aware that a Democratic administration that pursues the former occupant of the White House, the de facto leader of the Republican Party and the most prominent candidate for the 2024 election, will be accused of vendetta Politics. And that could trigger a wave of violence. Following the raid on Mar-a-lago, an armed guy tried to enter an FBI office in Cincinnati. He was killed after a confrontation with the police. Another was charged with threatening to “massacre” FBI agents.
“Merrick Garland has a reputation for being honest, very careful, for following the law scrupulously without any political considerations,” continues Stephen Gillers. It took weeks to approve the search warrant. To the chagrin of Democrats who dream of seeing Trump handcuffed in orange pajamas. For months, they have been accusing him of acting too slowly, of being too cautious, of only catching small fry… But by authorizing this historically unprecedented FBI operation, he showed that he had no not afraid to take on a former president.
How far will he go? Nobody knows. “He’s only going to prosecute him if he’s got a strong belief that he’s going to get a conviction,” said Robert Weisberg, director of the Stanford Criminal Justice Center. The big case is Trump’s involvement in the cancellation of the ballot. If Garland, for lack of sufficient evidence, does not indict him, there is little chance, experts say, that he will pin him on the case of the secret documents, considered less serious. Unless he kept plans for a nuclear weapon or sold information to the Saudis…
Admittedly, Donald Trump has a knack for passing between the drops of justice. He escaped two impeachments, the investigation into Russian interference in the elections… But he had the whole Republican Party behind him. But this time, many conservatives do not want him to run again.
As if Merrick Garland did not have enough pressure, “he is engaged in a race against time”, adds Robert Weisberg. “He can’t sue before the November election so he won’t be accused of influencing the ballot. But he’ll have a hard time doing that after January if Republicans take over Congress or Trump announces his candidacy.”