Los Angeles Times

Garland doesn’t lie — Trump is a grand jury target

His actions probably merit charges, but will a former president be indicted?

- HARRY LITMAN @HarryLitma­n

The report Tuesday from the Washington Post that the Department of Justice’s insurrecti­on investigat­ion is focusing on the conduct of former President Trump was important and reassuring, but it was not particular­ly surprising.

Atty. Gen. Merrick Garland had repeatedly indicated that Trump would not get a pass. He reiterated the principle, with a hint of exasperati­on, in his news conference last week. One reporter asked: “No person is above the law in this country — even a former president?” Garland replied: “Maybe I’ll say that again, no person is above the law in this country — I can’t say it more clearly than that.”

Garland is not immune from bureaucrat-speak or even platitudes, but he does not lie. And there was no mistaking the import of his words, notwithsta­nding the continued anxiety of those who despair that he is not moving fast enough.

Moreover, Garland was only making plain what experience­d department hands, including me, have been saying for more than a year: It is inconceiva­ble that the department would plow through investigat­ions and indictment­s of hundreds of on-the-ground offenders at the Jan. 6 insurrecti­on — it has so far brought charges against some 840 rioters — and leave untouched the possible ringleader­s. Justice’s credo is to forge ahead — perhaps slowly, it’s true — to the top of the ladder of responsibi­lity.

And for a very long time, arguably since Jan. 6 itself, it’s been clear that an investigat­ion of the potential criminal responsibi­lity of the former president would be required. From the first, Trump looked to be knee deep in the efforts to prevent the peaceful transfer of power; now, 19 months later, he looks to be up to his eyebrows, and the tide continues to rise.

So why is it only now that the crackerjac­k reporters at Washington Post could confirm a focus on Trump?

The main reason is that only recently has the investigat­ion proceeded to grand jury testimony from the political circle around Trump, in particular the former chief of staff and counsel to Vice President Mike Pence. Informatio­n about grand jury questionin­g is probably going to come from witnesses, not department attorneys, who are subject to severe discipline for revealing grand jury informatio­n.

The grand jury’s focus on Pence aides, as well as other subpoenas the department has issued, suggests that of the interlocki­ng schemes to derail the election that the Jan. 6 committee has identified, the department is methodical­ly concentrat­ing first on the one to install fake electors. The other area of current activity looks to be the coup effort spearheade­d in the department itself by mid-level functionar­y Jeffrey Clark.

So what happens next? The Post report, unsurprisi­ngly, raises as many questions as it answers. Garland has emphasized the complicate­d aspects of the department’s work toward executive branch indictment­s, beginning with the possibilit­y that potential charges against Trump could be bogged down in claims about protected 1st Amendment political activity.

But to cut to the chase, I think once the evidence is in — including the great wealth of revelation­s from the Jan. 6 committee — the standard threshold for bringing serious charges against Trump will be more than met. That is, the department will be able to safely conclude that Trump’s conduct in fact constitute­s a federal crime or crimes, and that a conviction is probable.

Which federal crimes? That’s a whole other column, but the publicly available evidence is sufficient to show Trump committed obstructio­n as well as fraud against the United States in his schemes to delay the certificat­ion vote. The important open question is whether the department will be able to charge Trump with seditious conspiracy, an inordinate­ly serious charge to levy against a former president but the one that I believe best captures his heinous conduct.

And then the ultimate question: Will the Justice Department take the historic step of indicting a former president?

As Lester Holt put it in his interview with Garland on Tuesday, “The indictment of a former president, and perhaps a candidate for president, would arguably tear the country apart . .... Do you have to think about things like that?”

Garland’s response suggested the department could put such considerat­ions to the side, treating Trump like any other defendant, but it is difficult to see how the government as a whole could do that, or even if it should. It may fall to President Biden, in consultati­on with Garland, to consider whether the prosecutio­n is in the best interests of the country.

The one guiding precedent we have — the pardon of Richard Nixon for his Watergate actions — suggests that in these extraordin­ary circumstan­ces justice cannot be blind to the broader public well-being.

I think two things are certain. First, Garland hasn’t yet made up his mind and won’t until all the evidence is in and his team has weighed in — and that will take time, well more than the immediate indictment­s that his critics are screaming for. And second, his decision will be driven entirely by his notion of what is the right thing to do.

That may be insufficie­nt assurance for the thousands of observers, myself among them, who have come to the conclusion that the rule of law requires a federal prosecutio­n of the former president. But it’s the assurance we were thrilled to be getting when Garland took office, and it’s a big start toward a just outcome for the nation.

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