Law \ Legal

Do The Right Thing: AG Garland Needs To Throw Out Weak ‘Fair Play’ Approach 


In this era of polarizing politics and dueling presidential investigations, the reserve values in special counsels seem to be increasing while those of attorney generals seem to be decreasing.  

The former president’s third and final Attorney General, Bill Barr, should have been impeached for his political and corrupt intervention on behalf of Trumpian criminal allies and against his political opponents. 

The erosion in faith in or legitimacy of the highest law enforcement officials in this country is not what our distressed politics need at this moment of democratic crisis as it only reinforces political partisanship.  

The “best” AGs like Robert Kennedy are not intimidated by politics or afraid of optics, let alone powerful criminals like Donald Trump. These AGs also stand above the mishegoss of bipartisan political parties. 

These AGs do not farm out their burdens of accountability to special counsels as appeasements to politics or to optics in what may be illusory separations of Justice Department criminal investigations and criminal prosecutions.   

Recent Appointments of Special Prosecutors

Since the former Deputy Attorney General Rod Rosenstein appointed Robert Mueller in 2017 to investigate the 2016 Trump campaign ties to Russia, three more special prosecutors have been appointed, including two in less than two months to investigate two presidents that ran against each other in 2020 and may very well run against each other one year from now. 

In any case, three special prosecutors were appointed in the last three years to conduct four investigations:

  • In 2020, Trump Attorney General Bill Barr appointed John Durham to “investigate the investigations” for possible abuses during the Russian probe that proved to be “much ado about nothing” except for empty conspiracy theories.
  • In 2022, Biden Attorney General Merrick Garland appointed Jack Smith to investigate Trump’s broadly organized efforts to overturn the 2020 election as well as his intent to keep classified documents from the National Archives at Mar-a-Lago. 
  • Last week, Garland appointed Robert Hur to investigate President Biden’s handling of classified documents found in the Penn Biden Center in Philadelphia and at his home in Wilmington, Delaware.

Return from when Trump and AG Barr in 2020 were politicizing the Russian investigation into the former president’s 2016 candidacy with Special Counsel Durham, to last week, the first full day of House business under the new Republican Speaker Keven McCarthy on January 10, 2023.

That day was spent on behalf of the insurrectionist-in-chief, busy politicizing various oversight activities and approving three highly contested investigative subcommittees along strict party lines. The most controversial was the formation of the Select Subcommittee on the Weaponization of the Federal Government.


Living in the American Dystopia of Polarized Politics  

An Orwellian spread is occurring where Trumpian insurrectionists and legislators are leading an investigation to interfere with the DOJ’s investigations into a former president who had already weaponized the Justice Department on a level the likes of which the United States has not seen since the days of President Richard Nixon. Most impressive has been Trump’s weaponization of the alt-right MAGA base, the House Freedom Caucus and the full membership of the House GOP. 

If he were still alive today, Trump’s political mentor, first personal attorney and long deceased friend Roy Cohn, perhaps the most powerful “fixer” of post-war America, would have been very proud of his protégé’s fraudulent accomplishments in business and during the 45th presidency.     

The incoming chairman of the Judiciary Committee Representative Jim Jordan (R-OH), a staunch ally of Trump who blew off a subpoena to testify about his own conspiratorial role in the failed coup before the January 6 House Select Committee, will now be chairing the subcommittee of weaponization. 

Talk about the pot calling the kettle black or the fox guarding the hen house; Jordan often makes it a practice to be as corrupt as possible. 

“Jordan, who was deeply involved in Mr. Trump’s efforts to overturn the 2020 presidential election, has for months been investigating what he says is a bias in federal law enforcement against conservatives,” Luke Broadwater and Catie Edmondson wrote for the Times

It has been his intent “to use his gavel and subpoena power to escalate and expand the inquiry” of conspiracy theories to include searching for evidence that federal workers have become politicized agents. 

Jordan is already demanding documents about ongoing criminal investigations so that among other things, he could have access to the evidence against himself and his co-conspirators. Of course, the DOJ will never release these documents, as Jordan fully knows. This is all Kabuki theater and performance politics; nothing substantive here except for its undermining damage to American democracy.  

While there is circumstantial evidence that some members of the Secret Service and the FBI may have been compromised immediately before, during, and after the assault on the Capitol, there may or may not have been some kind of coordinated working relationship with Trumpists and insurrectionists.  

The subcommittee’s proposed investigation of the ongoing DOJ investigations is a vibrant violation of the Constitutional “separation of powers” clause. And yet, two days later when Merrick Garland appointed a special counsel to investigate Biden’s classified documents, he seemed to be deferring or capitulating to the weaponization of the law by the House GOP and to some of the former fractions of the Trump Justice Department.  

Based on what we know, the AG’s appointment of special counsel Robert Hur to investigate Biden’s handling of classified documents was premature, even if it was appropriate to do so in the long run. 

As Garland stated in his public announcement: “I strongly believe that the normal processes of this department can handle all investigations with integrity.” However, references by the AG to “extraordinary circumstances” which may have led to his conclusion that a special counsel was called for were not explained and there were no questions taken.


Dueling Classified Documents and the January 6th Investigations

Without knowing all the facts, I am assuming that those extraordinary circumstances had nothing to do with the facts surrounding the possession of Biden’s mishandling of classified documents, and everything to do with the politics and optics of the ongoing investigations. 

The “timid” rather than “bold” attorney general was no doubt hoping that appointing Hur, a former Trump U.S. prosecutor, as the next special prosecutor, would make him look fair, honest and balanced. And supposedly demonstrate for all those paying attention that Garland is treating the classified presidential document cases as if they are the same.

Based on what we do know so far about the prima facie evidence, treating these very different classified document cases the same is indeed a politicalization of the administration of criminal justice.  

With respect to the January 6 investigation Garland and the DOJ appear to have been dragging their investigative feet. Certainly, they were way behind the House Select Committee based on the dozens of subpoenas issued by Jack Smith when he first came on board in December 2022.

Had the DOJ been doing its due diligence, those subpoenas would have been issued long before the fall of 2021. Next, indictments if they were to occur would have happened around the beginning of 2022 and prosecutions sometime before the summer. The trials could have been over by 2022 Labor Day, two full months before the midterm elections.   

On the other hand, this was not the case with its investigation into President Biden where the AG all of sudden became Johnny-on-the-spot. After a much shorter period of a couple of months of team Biden fully cooperating with the DOJ, as opposed to nearly two years of team Trump doing everything in their power to resist or obstruct justice, Garland bent over backwards to appear to be treating the two cases equally. 

When Garland learned by the spring of 2021 that the twice impeached former president and failed insurrectionist had once again violated the law and taken classified documents to Mar-a-Lago, the Justice Department wasted some eight months playing footsie with Trump in deference to the former president’s habitual lawlessness instead of stepping up to prosecute the forever norm, busting Trump on the plethora of evidence of obstruction of justice already in their possession. 

After all, it would take more than a year of Trump and his lawyers getting caught in repeated lies about the classified documents in their possession before there was a subpoena for the FBI to search his Mar-a-Lago property. Next, these early diversions were followed with frivolous legal motions by the Trump team and solid countermotions by the DOJ. 

These were subject to delays set in motion by an incompetent and/or corrupt Trump appointed Florida judge with questionable jurisdiction in the first place asserting spurious rulings on behalf of the former president that were quickly quashed by the appellate courts, not without having caused the subsequent appointments of special counsels Smith and Hur. 

Only after Trump’s post 2022 midterm election losses, when he announced in November that he would be running for president in 2024, did Garland finally appoint Special Counsel Jack Smith to investigate both the January 6 insurrection and the Mar-a-Lago stolen documents caper. 

By this point in time, however, a vigorous DOJ investigation should have already possessed the ample evidence needed to prosecute the long overdue indictments in both criminal cases. Once again, there was no need for the appointment of a Special Prosecutor in either of these cases. 

To this criminologist, based on the facts already known about the two classified document cases, to treat the former president and the current president equally on the faces of the evidence was disingenuous. 

Even worse, Garland’s hypocrisy in his use of discretionary procedural law not only undermines the rule of law, but also plays directly into the hands of Trump, McCarthy and Jordan. These unnecessary appointments of special prosecutors serve to reify the weaponization of the law. 

Déjà Vu? 

So far it seems like déjà vu when Trump and his fixer AG Barr played Mueller and the American people for fools. Meanwhile, Trump has escaped justice and gotten away with spinning another false narrative that really stuck: “No collusion, No obstruction.” 

This further set-in motion the panoply of both legal and political reverberations that we have all been living with. We will continue to endure this mishegoss until such time as “Boss Trump” and his ratpack of political hoodlums are no longer at large, escaping the righteous clutches of criminal justice, and are ultimately held liable for their dastardly deeds and heinous behaviors. 

Unfortunately, as columnist David Von Drehle of the Post has suggested, now that classified documents have been found in Biden’s possession, it becomes less likely that criminal charges will be brought against Trump over his Mar-a-Lago “portfolio of pilferage,” which had been virtually a slam dunk of all the potential criminal cases against Trump. 

Hopefully, the spirit of “fair play” will not somehow spill over to the non-indictment of Trump for his January 6 insurrection, which has never seemed like a priority to Attorney General Garland.

Fortunately, the House Select Committee did such a brilliant job that it may very well have forced the AG to do the right thing whether he wants to or not.

Gregg Barak is an emeritus professor of criminology and criminal justice at Eastern Michigan University, a co-founder of the Journal of White Collar and Corporate Crime, and the author of Criminology on Trump (2022) who is currently writing the sequel, Criminalizing a Former President: The Case of Donald Trump and the Missing Struggle for a New Democracy, to be published shortly after the resolutions of the criminal investigations and/or prosecutions of the former president.  

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