What to Expect From the Newly ‘Feistier’ Merrick Garland

October 14, 2022 Off By Todd Zwillich

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Now that the public part of the January 6 committee’s investigation of the coup attempt is (most likely?) done, the big question is, what will criminal prosecutors do about it? Right now, that question comes down to the judgment of two people: Fulton County (Georgia) DA Fani Willis and Attorney General Merrick Garland.

Franklin Foer, a staff writer at The Atlantic, interviewed a whole bunch of Garland’s friends, former clerks, and deputies, as well as Garland himself. He’s concluded that federal charges for former President Donald Trump are “inevitable.” I called up Foer to talk about it, and edited our conversation for length.

So you think that Merrick Garland is going to indict Donald Trump. What makes you say so?

Merrick Garland changed over the summer. First, he’s been changed by the job. As attorney general, he’s seen the threats to democracy. And I think he’s become less of a consensus-minded hyper-institutionalist and more concerned with these existential threats. So I think he’s become a bit more willing to engage in a confrontational approach with the anti-democratic forces in the country. Secondly, there’s the Mar-a-Lago case, which is, I think, a fairly black-and-white one.

But is Merrick Garland no longer the incremental institutionalist we thought we knew? Is he a slash-and-burn prosecutor now?

I don’t think so. While he may be more confrontational than he was 18 months ago, he is who he is. And he cares very much about institutions, including the DOJ. And I think he doesn’t like to see its integrity being impugned by its opponents. He doesn’t like to hear that its agents are planting evidence in people’s summer beach homes. And so I think that his institutionalism has been one of the things that has brought him along in the Mar-a-Lago case.

We learned this week that Trump ordered a Mar-a-Lago employee to move boxes containing government documents that were later seized. What have you seen in the Mar-a-Lago case since the search that makes you think Garland has switched gears?

It’s really so interesting, because this is the first time we’ve seen Garland and Trump going mano a mano. And Garland has been much feistier and aggressive than I think a lot of people credited him. It begins with the search itself, which is a very aggressive action. There was maybe a norm that you don’t storm the house of former presidents that we've gone past. Then at the press conference afterward, Garland basically said, “I’m going to take credit for doing this. This was my decision, and we're gonna call out Trump’s bullshit.” Then came the filings, including the famous photo of documents on the floor. There’s just not a lot of deference. There’s almost a dismissiveness at times about the shoddy legal arguments that the Trump team is making. It’s really treating Trump as if he’s any other defendant making a bad case in court. So Garland has applied his dictum that no one is above the law, and he’s backed it up with action.

How affected do you think Garland is by the attempt to entangle DOJ in the coup plot? The attempt to get DOJ to lie to the public about election results and investigations.

I think it’s a big deal. But I think in his head these cases exist on separate tracks. The role of DOJ in the post-election coup is one case, January 6 and the rioting is a separate case. You have the false electors running in parallel and then you have Mar-a-Lago. And I really don’t think that in his head he’s intermingling these cases.

What do you see in the Jan. 6 prosecution universe that makes you think Garland is getting tough to a point that it might rise to Trump?

In my view, the January 6 prosecutions are much tougher for him. It will take more time to get to the point where he’s ready to indict in that case at a higher level. And I don’t think that’s terribly unusual for a prosecutor to take their time in a public corruption case, especially when you’re going after current and former elected officials. Those cases almost always go at a fairly plodding pace, and that’s just the culture of DOJ.

So when does all this have to happen given that America is one big election cycle now and Trump is guaranteed to use a prosecution for political advantage?

I think by late spring of next year, but I’m not saying Merrick Garland necessarily would think about it in this sort of way. Garland may not care that his case doesn’t come to fruition within this presidential term. He may just let the investigation plod ahead for however long until he has a strong case to prove.

Trump and his allies are promising violence and chaos if he’s prosecuted. How do you think Garland weighs that as he thinks about the pros and cons of charging Trump?

I don’t actually know that it goes into his calculus. I think that it’s hard not to think about it because the threat is basically explicit at this point. Yes, there’s discretion involved, especially at this level. But my instinct is that when he says nobody is above the law, he means it. The prospect of right-wing violence is real, but there’s this other question, which is what happens to American democracy if you exempt somebody from the rule of law, or if you don’t punish these blatant crimes because you’re afraid of violence? My sense is he’s not going to bend to the threat.

Mother-of-all T.W.I.S.™ Notes

This Week in Subpoenas doesn’t usually get an enchilada this spicy. You’ve probably heard by now that the January 6 committee dropped the gavel by authorizing a subpoena of the man at the center of their investigation: Donald Trump. If you haven’t heard, please shoot me your life coach’s contact info.

Trump will do his best to bend this to his advantage while doing all he can to delay it. This legislative committee has no real enforcement power, so it could be the ideal place for Trump to ridicule and debase his critics in front of an irresistibly massive TV audience.

On the other hand, he would have to do that under oath. And in Florida, Fulton County, Georgia, and Washington, D.C., criminal prosecutors will be watching. To wit: Just two months ago Trump talked a big game about how a “racist” New York AG was out to get him with fake accusations against his business. And by the time Leticia James got him under oath, Trump opted not to repeat that stuff, and instead used Fifth Amendment protection to avoid incriminating himself. More than 440 times.

Trump’s lawyers will be the ones in charge of not letting him step on any legal rakes here. It’s no small task. As my colleague Greg Walters points out, in times like this it pays to remember the worlds of one-time Trump attorney John Dowd, who struggled to represent Trump through the Mueller investigation. Dowd told Bob Woodward, in the book Fear, that he didn’t think Trump was guilty of obstruction or collusion with the Russians. The problem, the lawyer says on page 357, is that Donald Trump “is a fucking liar.”

- Hutch you talkin’ bout, Willis

Fulton County prosecutor Fani Willis has a new witness in her criminal investigation of the plot to overturn the 2020 election. Cassidy Hutchinson, the aide to former White House chief of staff Mark Meadows, is cooperating in Willis’ grand jury. Hutchinson famously told the January 6 committee all about how Donald Trump knew the Capitol crowd was armed; how everyone around Trump watched him refuse to act as the rioters inflicted mayhem in his name; and how multiple members of Congress sought pardons for participating in the coup plot. As such, she’s likely to be able to answer questions about what Meadows, Trump, or other White House officials said or did around Trump’s bid to steal Georgia. Reminder that Willis has said she could start charging people as early as December.

Next of Kinzinger

One thing you can say for the people engineering America's anti-democratic lurch is that they make their intentions plain. Take Jim Marchant, the QAnon-jangled GOP candidate for Nevada secretary of state. Marchant made it clear at Trump’s rally earlier this week that he’s running in 2022 to hand 2024 to the former president.

Enter Republican January 6 committee member Rep. Adam Kinzinger, who this week endorsed a slate of pro-democracy Republicans, indys, and Dems—including Marchant’s opponent Cisco Aguilar. Kinzinger also endorsed Pennsylvania’s Josh Shapiro and Arizona’s Katie Hobbs, both Democrats, in their governor’s races against anti-democratic Trumpists.

Cuffing season

An Iowa man was arrested and charged for threatening two Arizona election officials just days after the end of the partisan Cyber Ninjas election review. Mark A. Rissi, of Hiawatha, Iowa, could get up to 12 years for allegedly leaving threatening voicemails for a Republican, Trump-supporting Maricopa County supervisor and also for an employee of Attorney General Mark Brnovich.

Lane ends, purge now

Early voting has started in the 2022 midterms, and so have systematic efforts to suppress voting through purges. This week in Georgia, the Cobb County Board of Elections rejected a challenge to 1,350 voters whose registrations were missing dorm room numbers or names. It’s happening all over the country. But in Georgia the purge attempts are pouring in by the tens of thousands, thanks to new GOP-installed rules allowing any voter to challenge unlimited numbers of registrations in any county.

Anon is sad

The creator of one the internet’s most notorious homes of harassment, mass shooters, and QAnon tells VICE’s David Gilbert that he has a lot of regrets.

“I’m gonna punch him out, I’m gonna go to jail, and I’m gonna be happy.” - House Speaker Nancy Pelosi, on Donald Trump, during the riot on Jan. 6, 2021.

Ballot’s in your court— Who better to recruit your county’s next generation of poll watchers than a Jan. 6 ringleader who urged protesters to “storm the gates” of the Capitol? Also, much more reporting here on how Republicans are using conspiracy groups to recruit poll watchers by the thousands. Their stated intent is to lawfully observe elections. Instead, they often wind up intimidating election workers. The worry is that poll watchers who’ve come up through the “stop the steal” farm system will throw up confusion at polling places and give partisan election officials the pretext they need for chaos.

Ya gotta have good faith — This lifelong conservative Republican writes on why he’s voting for Dems for governor and senator in next month’s midterms despite decades of party loyalty. “Even more dear to me, and more important to the country, is protecting the Constitution.”

See more Hersch — Herschel Walker and Sen. Raphael Warnock debate just once before Election Day in their Georgia Senate race. Walker sought to manage expectations for tonight’s debate by reminding voters that he's “not that smart”. He’s also alternatively calling the woman who says he paid for her abortion a liar and talking a lot about redemption for sins.

Exit Poe — Did Edgar Allan Poe die of…voter fraud? Maybe!