The General Explains

Merrick Garland responds to critics

Photo courtesy The Guardian

January 5

Previously, Attorney General Merrick Garland delineated that the Department of Justice (DOJ) would not wade into ‘political partisanship’ in the DOJ’s prosecution of criminal acts committed during ‘the assault on the Capitol.’ Otherwise, since January 20, 2021 Garland has remained mute, making no public announcements until today’s address.

Since October his quietude has drawn criticism from colleagues and Democrats.

Today, after 60 days of sustained public exposure, Garland, a bookish looking jurist, appeared mildly defiant of his critics, explaining that sentences appear lighter in the beginning of an investigation of conspiracy, leaving the observer to accept his description of compiling evidence, slowly at first, accelerating as ‘larger fish’ are netted. But these are not mute miscreants caught at a crime scene. This is not a scene from The Sopranos. The ‘larger fish’ are protected by scrims of lawyers, ‘legal precedents,’ and anxious Republican lawmakers.

What was ironic in 2017 is particularly disturbing in 2022: that ‘freedom of speech,’ an ‘executive privilege’-like chokehold on justice by the lawyered, will be the primary defense in hiding information of criminal intent.

In other words, ‘obfuscators’ run the show.

That is, if the ‘larger fish,’ show up and offer any information under oath before a grand jury.

When General Garland was interviewed during the aborted process of approving his appointment to the Supreme Court in 2015, he was asked ‘what would you say has been the greatest challenge of your career?’ Garland answered by recalling his attempts to getting crime witnesses to come forward and identify gang violence perpetrators in their community.

Fast forward to Garland’s speech this week and we hear a similar challenge voiced.

“The Justice Department remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” (1)

Beyond the legal tightrope Garland described today there is a public dimension to the Office of the Attorney General and this is what some critics of the ‘Garland investigative approach’ pointed to recently in a NYTimes opinion piece (2)

“While the department has filed charges against more than 700 people who participated in the violence, limiting the investigation to these foot soldiers would be a grave mistake. As Joanne Freeman, a Yale historian, wrote this month about the insurrection, ‘Accountability — the belief that political power holders are responsible for their actions and that blatant violations will be addressed — is the lifeblood of democracy. Without it, there can be no trust in government, and without trust, democratic governments have little power.’”

In other words, laws are not just for prosecutors, judges and grand juries to wrestle with. There are the voids exposed in the public trust which loom with ‘another’ political conspiracy. When Hannah Arendt wrote that ‘lawyers are the mysterious arbiters of social change,’ she was speaking to the realpolitik that seduces, the ‘oh, this-again mumble’ as one turns over and goes back to… sleep.

Is it Garland’s role to mine these voids of credibility, of acceptance of institution norms? Tribe and company’s challenge (4) to Garland is to pursue “accountability,” otherwise the ‘larger fish’ will swim free. While the perps mine the public realms of Fox News, where do the ‘rest of us’ draw closure on “events leading up to and culminating” in January 6?

A felony sentence?

One heard Garland mention “violence” many times during his press appearance today. (3)

Did we hear him mention “accountability?” Except extended to those ‘present on January 6 or otherwise criminally responsible…,’ which delicately describes a narrow circle around the violence of January 6 and an impending evidentiary infrastructure.

Presumably, the motive(s) preparing the violence — a cruel lie stoking lawlessness — will elude “accountability.”

‘Oh, this-again?’ refrain?

January 7

1-Benner, “Garland Vows to Pursue Investigation ‘at Any Level,’” NYTimes, January 6

2- Tribe, Ayer and Aftergut, “Will Trump Get Away With Inciting an Insurrection?,” NYTimes, December 29

3-Rachel Maddow, TMS, January 5

4-Tribe, Ayer and Aftergut, op cit.