Writing about the will he-won’t he debate as to whether Attorney General Merrick Garland will ever authorized prosecution of Donald Trump for his crimes against the nation, Washington Post columnist E.J. Dionne observes that, “Worry about what might or might not look “political” is itself a political consideration that should not impede equal justice under the law. If a president is not above the law, a defeated former president isn’t, either.” What Dionne is getting at is that a decision to prosecute Trump could be seen as politically motivated, rather than an objective application of the law to the facts at hand. This specific fear also appears to underlie Democratic hesitancy to refer crimes uncovered by the January 6 commission to the Justice Department for prosecution, or whether it would be better to let the Justice Department reach such a decision independently.
Dionne’s point that efforts to evade looking political can actually be quite political is spot on. In Garland’s case, the idea of holding back from prosecuting Trump so as not to look politically motivated has two significant, interrelated meanings. The first is that Garland would want to avoid appearing to act in a way that favors the Democrats, which would be an abuse of his position as attorney general. The second is that Garland would want to avoid undermining faith in the rule of law by creating the impression that he was acting out of partisan motivations.
Under the first meaning, it would seem at first glance that maintaining an appearance of non-partisan neutrality would argue for Garland to look the other way in the matter of Trump’s offenses. But it’s not as simple as this. If Garland is influenced by how his decision might impact the Democratic Party, even if it is framed in terms of sparing them blowback for prosecuting political enemies, this would clearly be a political decision.
But even if Garland himself gave absolutely no consideration to protecting the Democrats in a decision not to prosecute Trump, this beneficial outcome for Democrats would still be part of a reasonable interpretation of events by some observers. This helps get at a point hiding in plain sight around this whole “political decision” debate — Garland simply cannot control what other people say about his decisions, including, most importantly and emphatically, what Republicans say.
The fact of the matter is that we already know that should the Justice Department decide to prosecute the former president, the GOP will inevitably attempt to frame it as a politically-motivated move to benefit the Democrats and kneecap the GOP’s leading 2024 presidential contender. It should be obvious that if every prosecutor refrained from pursuing a case because someone objected to it as politically motivated, the United States would soon descend into a state of lawlessness.
In the case of Donald Trump and the Republican Party, moreover, concerns about protecting trust in the rule of law by not prosecuting Trump fail the laugh test. In claiming that Donald Trump should be immune from normal prosecutorial decision-making, that he is in fact innocent despite whatever facts the Justice Department may possess, it is the GOP, not Merrick Garland, that works to undermine the rule of law. Should Garland allow this “playing of the refs” to influence his decision, he will actually be validating and reinforcing a GOP argument for lawlessness, as least in the matter of corrupt and even insurrectionist politicians. Refusing to enforce the rule of law because you fear it will undermine the rule of law doesn’t make a lot of sense.
Finally, if it is true that Garland is hesitating because of a fear of appearing too “political,” then such a debate pits abstract, even theoretical concerns against a known, impinging reality. We are not talking about whether to prosecute a former president for a non-political or minor crime — as would be the case in some alternate universe where, say, Donald Trump had stolen a car and taken it for a joy ride while he was in office (in our unfortunate universe, it was the country he took for a joy ride!). Instead, the general crime in question — embarking on an attempted coup against American democracy — is the most serious type of political offense one can imagine, not the least aspect of which is that it is a direct attempt not just to undermine the rule of law but to eliminate it entirely. Moreover, Donald Trump’s criminal goals have now been taken up by many, if not most, elected Republicans, as they work to subvert future elections, legitimize political violence, and portray Democratic Party members as agents of evil rather than mere political opponents. The true test of the rule of law is not whether Garland weighs abstract political considerations like a theologian counting angels on the head of a pin; the true test is whether our attorney general will use the power of the law to defend the existence of democracy itself, by making an example of the leader of a slow-motion but very much real American insurrection.