Merrick Garland’s Pains-Taking Approach to Trump May Have Lost the Political Moment
Robert H. Jackson was the last Supreme Court justice who never earned a law degree. After a year at Albany Law School, he became a lawyer from the old “law reading” practice in Jamestown, New York. He joined the star of then-Gov. Franklin D. Roosevelt and when the latter became president, Jackson joined the administration and served in a variety of jobs, beginning as assistant general counsel at the Bureau of Internal Revenue, in which capacity Jackson became a pate noire of particular of Andrew Mellon and his business interests. In 1938, he was appointed solicitor general and, in 1940, prosecutor general. He spent a year in that job until FDR appointed him to the Supreme Court. His appointment was confirmed on July 7, 1941, just in time for Jackson to serve on the court during World War II and until his death in 1954. While hospitalized with the first heart attack that would later kill him , Jackson left his bed and descended on the court so that he would have a full complement of justices when she handed down her unanimous decision in Brown v. Board of Education on May 17, 1954. He would have died in October.
However, Jackson came back on my radar recently because I decided to look back at the Nuremberg trials of 1945. Jackson received a leave from the Supreme Court to serve as the lead US prosecutor in those trials. The Nuremberg trials were an attempt by the victorious Allied powers to bring justice to the victims of Nazi atrocities through due process and the rule of law. This was largely unprecedented, and Jackson was the main source of the idea that trials should be public and scrupulously fair. The accused, though they might be monsters, were given the right to defend themselves and cross-examine the prosecution’s witnesses. Jackson insisted on this procedure to demonstrate to the world the effectiveness of all the Western institutions that the Nazis had sought to suppress. He wanted to show that those concepts were stronger and more enduring than the authoritarian brutality that had abandoned them in blood and rage. Jackson made that point abundantly clear when he first rose to address the proceedings.
They have so identified themselves with the philosophies they conceived and the forces they directed, that any leniency towards them is a victory and an encouragement to all the evils attached to their names. Civilization can afford no compromise with social forces which would gain renewed power if we deal vaguely or undecidedly with the people in whom those forces now precariously survive.
I went down this particular rabbit hole because my patience with Attorney General Merrick Garland and his painstaking pursuit of the former president* and various crooks and yahoos in his employ has now worn thin. I admire Garland’s fairness and his scrupulous respect for legal qualities. I’ve done it before and I still do it. But that’s only half of what Jackson asked of the court in 1945. He wanted the rule of law to do more than simply demonstrate its strength. He wanted that force to be used, resolutely and relentlessly, in the pursuit of justice. Garland may be doing the same, but there’s little evidence of that, and this week, everything seemed to be going in the opposite direction.
Robert H. Jackson in Nuremberg, Germany.
The discovery of two different sets of classified documents apparently held in the custody of the current president has changed the public calculus that had piled so heavily against the former president* over the summer and fall. Garland waited as long as political circumstances caught up with him. Over the past week, despite dozens of “explainers” on TV and in the written press about how the two situations are completely different, an equivalence has been advanced in the public mind that can do nothing but hinder the prosecution of the administration’s crimes. previously from the DD. . Worse, acting on the discretion that was supposed to be his forte, Garland has gone on to appoint a special counsel in the Biden case, one Robert Hur, a former US attorney appointed by Trump with ties to Federal Society. From the New York Times:
In picking Mr. Hur, Attorney General Merrick B. Garland is continuing a pattern of asking current and former U.S. attorneys appointed by Trump to handle politically sensitive investigations — such as the investigation into the president’s son, Hunter Biden – to assuage any concerns about political bias.[…]In November, Mr. Garland offered much the same explanation for the selection of Jack Smith, a veteran war crimes prosecutor, to oversee concurrent investigations into Mr. Trump’s misuse of classified documents and his actions surrounding the January 6, 2021 attack on Capitol. “This appointment underscores to the public the department’s commitment to independence and accountability in particularly sensitive matters, and to making decisions unquestionably guided only by the facts and the law,” Garland told reporters during a briefing Thursday.
Law (as Aristotle instructs us) is reason, free from passion. But it is also reason with a purpose and a direction. Reason with a sense of momentum about it. It is not reason associated with endless contemplation and analysis. And it is certainly not reason limited by political calculation and legal timidity. And I’ve come to the conclusion that both of these contributed to Garland letting the investigation into Donald Trump’s crimes drag on long enough for the forces of public reaction to gather enough force to muddy the evidence and quell the outrage.
There is now a monomaniacal Republican majority in the House of Representatives that has no interest in anything but protecting the former president and his enablers among its members from the consequences of four years of their political vandalism and looting that ended in vandalism and real capitol looting.
This was a worrying week, one in which many criminal consequences seemed to be slipping away. Again. That’s probably unfair, considering that Jack Smith, the special counsel Garland was tasked with investigating in the previous administration*, unleashed a canister fire, issuing subpoenas to people associated with nearly every questionable enterprise conducted between 2017 and 2020, even the post-Electoral manner in which the former president* dropped the words about his alleged investigation into “voting irregularities,” an undertaking with the credibility of OJ Simpson’s search for real killers. This is a real moment — except the announcement got lost in the blur of Biden’s documents.
I fear that, like much of official Washington and like many of our fellow citizens, Garland cannot grasp the magnitude of the threat posed to the republic by the modern Republican Party, the curd movement conservatism that is its main fuel, and the power of the previous president* as its engine.
This, of course, was one of the challenges facing Robert Jackson at Nuremberg. Much of the world did not want to know, or refused to believe, the extent of the crimes Jackson was pursuing. He needed to use law – and reason, without passion – to make the world see and understand what had happened in Europe. He had to make them believe the unbelievable, think the unthinkable, and he had to do it by leaving them nothing else to believe and nothing else to think.
On July 26, 1946, Robert Jackson stood up again, this time to present his closing argument. He told the court, and through it, the world, what to believe and what to think—for the law and the evidence were left with no choice.
When for years they have deceived the world and disguised the lie with credibility, can anyone be surprised that they continue their habits of life in this bank? Credibility is one of the main issues in this trial. Only those who have failed to learn the bitter lessons of the last decade can doubt that men who have always played on the unsuspecting loyalties of generous adversaries would not hesitate to do the same now.
“Masquerading a lie with credibility” is the crux of the case that Merrick Garland may now have waited too long to pursue.
Charles P Pierce is the author of four books, most recently American Idiot, and has been a working journalist since 1976. He lives near Boston and has three children.