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The Case for Indicting Donald Trump

Atlantic staff writer Frank Foer discusses why the indictment of Trump is now “inevitable”

Donald Trump Holds Campaign Rally In Support Of Arizona GOP Candidates Photo by Mario Tama/Getty Images

For years, liberals have deluded themselves into thinking that Donald Trump was always on the verge of some calamitous legal defeat. Robert Mueller was made into an icon of the left. But no charges were filed. The Russiagate theory had a lot of smoke, and even some fire, but it failed to put Trump in a courtroom. At this point, you could be forgiven for checking out entirely on the efforts to charge Trump with crimes, since they all seem to end the same way. Without an indictment.

If that’s going to change, it will largely rest on the decision making of one man: Merrick Garland, the attorney general of the United States. In a recent essay for The Atlantic, staff writer Frank Foer spent hours talking to Garland to understand who he is, how he thinks, and how his approach to law could help us predict the next chapter of the Trump legal saga. Foer comes away with a big prediction: The indictment of Trump is now “inevitable.” And he’s here to tell us why.

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In the excerpt below, Foer examines how Merrick Garland’s personality influences his running of the United States Department of Justice.

Derek Thompson: So you recently wrote a profile of U.S. Attorney General Merrick Garland, after spending some time with him and talking to the people around him. So for people who are curious to know, is this the man who will become the first attorney general in American history to indict a former president? What should we all know about who Merrick Garland is?

Frank Foer: I think most people knew of Merrick Garland before he became attorney general as the guy who never became a Supreme Court justice. I mean, it was his lifelong ambition to be a Supreme Court justice. On three separate occasions, Barack Obama considered nominating him for the job. And it was only on the third occasion, when he seemed too old to get the job, that it actually fell into his lap. And then it was denied to him by Mitch McConnell, who transgressed every norm in the history of the U.S. Senate by denying Merrick Garland even a hearing before the Senate Judiciary Committee.

And he is a guy who is known as very cautious, institutionalist. He’s a creature of the legal establishment. And so he inherited this job of attorney general, as the nation’s chief law-enforcement officer, coming on the heels of the Trump administration, which had essentially trashed the Department of Justice. It had run roughshod over all of its norms and used the department to punish political enemies and reward friends. And Garland was the guy who came in to restore the Justice Department, to have it return to ways that it had operated before the Trump administration ruined the place.

And so that was his job, that was his mission. And then the day before he’s announced as attorney general is January 6, 2021. And so he comes into the job and all of a sudden, he thinks he’s going to do one thing, and this massive case falls into his lap. And I think, when I talked to people around him, they all said he came in hoping that he was going to be the guy who was going to lower the temperature around legal issues in this country. And instead, he’s faced with this case that’s filled with all sorts of contentious issues that might very well result in him having to indict the last president of the United States.

And so people have always wondered, is he really going to be the guy who’s going to go all the way, to do this thing that’s so unprecedented? Or is he going to revert to all of these cautious instincts that he’d accumulated over the course of a lifetime?

Thompson: He is a deep institutionalist. I mean, even as Garland’s Justice Department is investigating the president, he is also defending Trump in a defamation lawsuit filed by E. Jean Carroll, a writer who accused Trump of raping her. He’s also, as you wrote in The Atlantic, permitted the special prosecutor John Durham to continue to investigate the origins of the Russiagate case.

So it’s really bizarre, for me, as someone who is not at all deep in the inner workings of the Justice Department, to think about this guy overseeing a bureaucracy that is simultaneously investigating a former president, and serving as his attorney. Maybe just help us unscramble this. How is all this happening at once?

Foer: So there was a phrase that you hear people in the Justice Department attribute to Merrick Garland, which is “return to normal order.” And so when he looks at something like the two instances that you mentioned, his instinct is, “Well, these are prosecutors in the Justice Department who are telling me that this is the right course for us to take. And I look at the precedent, I look at everything that’s happened in U.S. legal history, and I say, ‘Well, all right. I may not like doing either of these things, but if I’m just adhering to historical practices and norms, then I really don’t have a choice but to do these things.’”

And so that’s one thing. And then I think you look at the cases against Trump and other aspects, he keeps returning to another phrase, which is that “no person is above the law.” And so that’s the norm that he’s trying to preserve in those other cases. And so it does create this dissonance where, on the one hand, he’s forced to defend Trump. And then on the other hand, he’s forced to consider indicting Trump.

This excerpt was edited for clarity. Listen to the entire episode here and subscribe to the Plain English feed on Spotify.

Host: Derek Thompson
Guest: Frank Foer
Producer: Devon Manze

Subscribe: Spotify