Revolving Door Project | Merrick Garland’s Delay May Mean Justice Denied

Trump’s private jet parked at New York’s LaGuardia airport on April 18, 2024, where the criminal trial is ongoing for Trump’s 34 felony charges of falsifying business records to cover up his past affair with a porn star. Photo by the author.

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Last week, the Supreme Court mulled over whether the former president (the “very stable genius” who pushed a “miracle cure” for COVID later tied to 17,000 avoidable deaths) should be prescribed his own miracle cure: presidential immunity for the crimes he is charged with committing while in office.

At this point, it’s very hard to be startled by the degree of corruption among right-wing Supreme Court judges. But the consequences of this latest demonstration of their willingness to toy with American democracy like an orca with its prey have riled seasoned court watchers for good reason.

It’s clear that we’ve now pretty much run out the clock on Special Counsel Jack Smith’s prosecution of Trump reaching trial before the presidential election. As Dennis Aftergut explained for Salon, “If the Court waits until the end of its session in June to decide the case, there is little chance for a trial to complete before the election. If the Court sends the case back to the lower courts, there is no chance.” And judging by how oral arguments went—with a majority of conservative justices seeming willing to carve out at least some immunity for criminal presidents—if the Court does reach an expedient decision, it isn’t likely to be a good one.

How did we get here? We’re over three years into Biden’s term, and the January 6th insurrection was over 1,200 days ago. Surely, if the Justice Department had gotten the ball rolling earlier, we should have reached a trial by now in this case about Trump’s attempt to subvert the 2020 election results. (For keeping track of Trump’s many other crimes and their corresponding cases, Slate’s weekly Trump trial round-up is handy.) Looking back two years ago to the first anniversary of Jan. 6, we were already deeply concerned about Attorney General Merrick Garland dragging his feet in prosecuting Trump. As my former colleague Eleanor wrote for this newsletter on January 5, 2022:

[T]here continues to be absolutely no indication that the Justice Department is pursuing those atop the conspiracy, whether it’s Donald Trump himself or the many administration officials and members of Congress involved.

The inaction is becoming impossible to excuse, even for those who were once inclined to give Garland the benefit of the doubt. And though he is joining in the week’s programming with a speech today on the Department’s January 6 investigation, a DOJ spokesperson made clear that he “will not speak about specific people or charges” but rather discuss “the department’s solemn duty to uphold the Constitution, follow the facts and the law and pursue equal justice under law without fear or favor.” In other words, his remarks (the first Garland has offered on the investigations since taking office) seem like they may be less aimed at informing the public and more at quieting his critics with vague generalities.

In Garland’s remarks that day, he pledged that the investigation would, like any other ongoing investigation, take “as long as it takes and whatever it takes for justice to be done.” But this isn’t just any investigation, and as Alex Wagner at MSNBC commented last month, “the problem is the ‘as long as it takes’ and ‘whatever it takes’ are now coming up against one another.”

It took Garland all the way until November 2022—nearly two years after Biden’s inauguration—to appoint Jack Smith as Special Counsel to oversee the two federal investigations into Trump. Over the past year and a half, Smith has moved swiftly, but has not been able to recover the lead that Garland squandered. We are rapidly approaching the possible realization of the maxim “justice delayed is justice denied,” and Garland is culpable in that delay.

Since the beginning of the Biden administration, we’ve been scrutinizing Merrick Garland’s Justice Department leadership and personnel choices. We’ve seen example after example of Garland’s straitjacket institutionalism constraining the DOJ’s ability to thwart threats to our democratic institutions. For a sampling of our longstanding critiques, see:

June 8, 2021: “Why Is Merrick Garland Defending Donald Trump?” In the name of returning the DOJ to “normal,” the attorney general has protected an abnormal president from accountability.
March 25, 2022: “LEFT ANCHOR PODCAST: The Hapless Merrick Garland, with Jeff Hauser.” Why is Biden’s attorney general so reluctant to charge Donald Trump and his cronies for their crimes?
April 18, 2023: “The Ghost of a Trump Appointee Is Haunting Merrick Garland’s Justice Department.” Jeffrey Bossert Clark may be gone, but his influence on the agency’s environmental work is far from forgotten.
April 11, 2024: “Justice’s Slow Prosecution of Trump Is Just the Start of Their Sluggishness.” The top leadership at DOJ, including deputy attorney general Lisa Monaco, has failed to take available steps to hold white-collar criminals accountable.

What Trump and Exxon Have In Common

There’s an interesting parallel between the House Select Committee’s Jan. 6 investigation and the joint House-Senate investigation into Big Oil’s campaign of deception. These two laudable and highly publicized congressional oversight efforts both make visible the Justice Department’s comparable sluggishness in investigating the same federal crimes.

This morning the Senate Budget Committee is holding a hearing to share findings from the report out yesterday on their long-running investigation into Big Oil’s campaign of deceit. Based on new findings from subpoenaed documents, the report continues to expose fossil fuel companies’ disinformation campaigns, their obstruction of investigations, and how they hide behind trade associations to push their most unpopular proposals while partnering with universities to legitimize their misinformation.

In the wake of this raft of new evidence, our friends at the Center for Climate Integrity called on the Justice Department once again to finally open its own investigation into the fossil fuel industry. (We’ve called on the DOJ to do the same.) A federal investigation into the oil majors’ violations of racketeering and consumer protection laws is long overdue. Cities, states, and tribal governments have led the charge in investigating and prosecuting these corporations. Congress spent three years on this investigation, and nearly two dozen members of Congress urged the Justice Department last summer to pick up where these investigations leave off.

As with the Jan. 6 investigations, which Garland decided to organize from the bottom-up at the expense of top-down (of course, both approaches could have been undertaken concurrently), focusing on rioters instead of Trump and his cronies, a central obstacle to the Justice Department going after the big fish most responsible for our fossil-fueled climate crisis seems to be Garland’s unwillingness to make powerful enemies.

Some might argue that the Justice Department’s 400-odd environmental lawyers don’t have the mandate or resources to challenge the most powerful opponents of the public interest. But the fearless work of the DOJ’s Antitrust Division (around twice the size of the Environment and Natural Resources Division, but still decidedly outgunned by corporate bigwigs) puts that argument to shame. The main difference is attitudinal: Antitrust Division leadership is willing to be David going up against Goliath, even if they don’t always win, because that’s their job: protecting the public from its most powerful exploiters.

The DOJ’s Environment and Natural Resources Division put out its accomplishment report for 2023 this month, and the topline stats are telling: it won nearly all of its cases, but secured comparably lower penalties than most years under Biden, Trump, and Obama. (This balance recalls a conversation quoted in The Chickenshit Club, in which then US Attorney James Comey asks a room full of criminal prosecutors, “Who here has never had an acquittal or a hung jury?” And as hands shoot up, ready to be praised, he continues, “You are members of what we like to call the Chickenshit Club.” Comey goes on to describe that their job is to “seek to right the biggest injustices, not go after the easiest targets.” But of course, this perspective is not the prevailing attitude at Justice.)

To be clear, the ENRD has done a lot of laudable work, and has worked hard to refocus its priorities after the wrecking ball approach of its Trump-era leadership by Jeff Clark. But the division hasn’t been particularly ambitious in building back better after those rattling years, and it shows: their work has largely flown under the radar since.

I’ll leave you with this question: would you rather see the government take a stand against the most powerful villains and sometimes lose, or have the government only pick fights that it felt it could win?