An opinion on Trump’s legal fate: But is it already too late?

Staff reporter Franklin Foer at The Atlantic writes:

THE INEVITABLE INDICTMENT OF DONALD TRUMP

Merrick Garland hasn’t tipped his hand, but it's clear to me that he will bring charges against the former president. 

As an appellate judge, Merrick Garland was known for constructing narrow decisions that achieved consensus without creating extraneous controversy. As a government attorney, he was known for his zealous adherence to the letter of the law. As a person, he is a smaller-than-life figure, a dry conversationalist, studious listener, something close to the opposite of a raconteur. 

And as the nation’s chief law-enforcement officer, he is a hyper-prudential institutionalist who would like nothing more than to restore—quietly and deliberately—the Justice Department’s reputation for probity, process, and apolitical dispassion.

But this is what I believe he is preparing himself to do.

I have been observing Garland closely for months. I’ve talked with his closest friends and most loyal former clerks and deputies. I’ve carefully studied his record. I’ve interviewed Garland himself. And I’ve reached the conclusion that his devotion to procedure, his belief in the rule of law, and in particular his reverence for the duties, responsibilities, and traditions of the U.S. Department of Justice will cause him to make the most monumental decision an attorney general can make. 

But I believe, if the evidence of wrongdoing is as convincing as it seems, he is going to indict Trump anyway.  

In the case of Donald Trump, the prosecutor is Merrick Garland and discretion would allow him to decide that an indictment is simply not worth the social cost, or that the case is strong but not strong enough. Garland’s critics fret that when confronted with this moment, his penchant for caution will take hold.  

With the investigation of Trump, the legitimacy of the judicial system is at risk. Of course, the MAGA set will never regard an indictment of their leader as anything other than a sham. But the perceptions of the rest of the country matter too. .... Indicting the candidate of the opposing party, if it occurs, should feel reluctant, as if there’s no other choice.  

I was surprised he would resist the term [institutionalist]. I think he wanted me to understand that he is alive to the perils facing democracy—and isn’t naïve about what it will take to defeat them. Norms alone are not enough to stop a determined authoritarian. It wasn’t quite a reversal in his thinking; radicalizing Merrick Garland would be impossible. But it was an evolution. His faith in institutions had begun to wobble.  

With his optimism bruised, and his heightened sensitivity to the imminent threats to democracy, he’s shown a greater appetite for confrontation. There is no sharper example of this than his willingness to spar with Trump over the sensitive documents stashed at Mar-a-Lago.  

The deadline for indicting Trump is actually much sooner than the next Inauguration Day. According to most prosecutors, a judge would give Trump nearly a year to prepare for trial, maybe a bit longer. That’s not special treatment; it’s just how courts schedule big cases. 

The excruciating conundrum that Garland faces is also a liberating one. He can’t win politically. He will either antagonize the right or disappoint the left. Whatever he decides, he will become deeply unpopular. He will unavoidably damage the reputation of the institution he loves so dearly with a significant portion of the populace.

Faced with so unpalatable a choice, he doesn’t really have one. Because he can’t avoid tearing America further apart, he’ll decide based on the evidence—and on whether that evidence can persuade a jury. As someone who has an almost metaphysical belief in the rule book, he can allow himself to apply his canonical texts.

That’s what he’s tried to emphatically explain over the past months. Every time he’s asked about the former president, he responds, “No one is above the law.” He clearly gets frustrated that his answer fails to satisfy his doubters. I believe that his indictment of Trump will prove that he means it.

Foer’s reasoning makes sense, but is it right? No matter what choice Garland makes, one side will dislike or hate his decision. Foer understands the propaganda bonanza that Trump and the radical right propaganda Leviathan would create and unleash on the American people if there is an indictment. That is something Garland abhors. Foer foresees that a trial of Trump (i) would turn into a “carnival of grievance” and “a venue for broadcasting conspiracy theories about his enemies,” and (ii) be a “flash point for an era of political violence” with protesters and counter protesters outside the court, possibly leading to street violence. Social damage will be enormous. In my opinion, Foer is correct on all counts. 

But will Garland indict Trump? Personally, it does not feel that way based on Garland’s record to date. But if Foer is right about what drives Garland, he should be be and probably is right. 

If Foer is right, will it be too little too late to indict, try and convict Trump? It feels that way to me, but I could be wrong. The poison and horrifying autocratic-theocratic extremism that Trump unleashed on American society and the Republican Party is an uncorked genie. It is toothpaste out of the tube. But that assessment could also be wrong. And, if Trump is exonerated, he would be politically invincible. Democracy, the rule of law and secularist pluralism would fall to some form of cruel autocratic, plutocratic, brass knuckles capitalism and Christian theocratic kleptocracy.

Time is running out, or already has

As Foer points out, time for Garland to decide is running out. In my opinion, it may already be too late. If Garland indicts this month and the court gives Trump about one year to prepare, the trial would start in Oct. or Nov. 2023. Trump, as usual, would do everything in his power to delay and derail the court case, all the while whipping up his loyal base with faux grievances, lies and slanders. If a Republican is elected president in Nov. 2024, the lawsuit would almost certainly be dropped soon after the new president would be sworn in on Jan. 20, 2025. That would forever be the end of justice and the rule of law for Trump. He would forever be untouchable. And, democracy and the rule of law would continue their fall.

If that analysis is right, maybe Garland’s best choice is to not indict Trump and pray that democracy, inconvenient truth, secular pluralism, the rule of law and civil liberties can at least partly survive and remain more or less relevant. Either way, the rule of law and the DoJ and the rule of law will take another major hit in public trust.

At least for democracy and the rule of  law, the situation probably is a lose-lose. The American public is polarized and distrustful because poisonous dark free speech has deceived and captured tens of millions of minds.