I’ve read variations of this straw man argument too many times, and I think it’s about time we did just that…
Merrick Garland’s nomination as Attorney General was announced on January 6th, 2021. He was sworn in and assumed office on March 11th.
The New York Times
Attorney General Merrick B. Garland promised on Thursday to protect the credibility of the Justice Department and Americans’ civil rights and civil liberties, delivering a short speech via video to the department’s roughly 115,000 employees about an hour after he was sworn in.
(snip)
“The only way we can succeed and retain the trust of the American people is to adhere to the norms that have become part of the DNA of every Justice Department employee,” Mr. Garland said.
Mr. Garland spent the bulk of Thursday in private briefings with top department officials, including with Christopher A. Wray, the F.B.I. director; John P. Carlin, the acting deputy attorney general; John C. Demers, the head of the national security division; and Michael R. Sherwin, the federal prosecutor overseeing the department’s sprawling investigation into the assault on the Capitol on Jan. 6.
(snip)
In a virtual meeting with all the office’s employees, Mr. Garland complimented their efforts to mitigate the threat in the weeks after the Capitol attack and reiterated the importance of the investigation, according to an attendee.
Garland’s full remarks that day can be found here...
Before we begin our thought exercise we need to take into consideration that the timing of this imagined appointment matters. Would this happen immediately after he said these things, or instead of? For the sake of argument let’s imagine Garland made more forceful remarks on his first day in office and then appointed a Special Counsel in the first few weeks or months afterward.
The first thing I can presume in this imaginary situation is that Jack Smith would not have been appointed as the Special Prosecutor. He still had 14 months left of his four-year term as chief prosecutor for the Kosovo Specialist Chambers at The Hague. I don’t know who we’d have gotten, but it wouldn’t have been the man to whom so many of you give all the credit.
The second thing we can presume is that the Mar a Lago Espionage Act case would very likely be no further along. It would not have been a part of an early Special Counsel investigation’s mandate as NARA did not request DOJ assistance until classified materials were discovered in boxes retrieved on January 18, 2022 through their own investigatory efforts.
Many of you simply imagine that the investigations, and thus the indictments, would be 2.5 years further along. In actuality the difference between Garland taking the helm at DOJ and Jack Smith’s appointment as Special Counsel was 1 year, 8 months, and 8 days…
That does not immediately mean that indictments would have come that much sooner, but for sake of argument let’s presume it does and the DC indictment dropped at the beginning of December 2021... The requested start date for these imagined criminal proceedings, all things being equal, would have landed in early May of last year.
Now that we’re all firmly rooted in our imaginary timeline, let’s explore the ramifications...
The first thing I imagine is that prosecutors would have begun that trial with who knows how much less evidence for the simple reason the investigations would have been conducted in less time. This means fewer man hours expended, fewer witness interviews conducted, and fewer searches executed.
The next thing I imagine is that the right wing outrage machine would have been exponentially worse and in full overdrive from the get go. Garland would have been immediately seen as having it in for the #FPOTUS. The accusations of a vendetta and a witch hunt would have had more fuel and thus more fire. We might have spent the last two plus years experiencing much more intense armed and deadly violence… Two and a half years of blood running in our streets like never before.
With early resources diverted to investigating those at the top of the food chain, the search for the more than 3,000 insurrectionists who breached our nation’s Capitol would have undeniably suffered. The DOJ’s record would not currently boast 1,105 individuals charged, 715 convicted, 593 sentenced, 437 indictments, and 594 guilty pleas.
The Supreme Court might have ruled differently on claims of executive privilege from #FPOTUS & Co. if they had come earlier and in the face of heightened tension and violence nationwide. Together with a shortened investigation period prosecutors might have felt it impossible to bring indictments let alone get a conviction at trial.
Should we assume Trump would have been carted off to prison in shackles by now? Or should we assume Trump would have been acquitted by a jury and appear vindicated? Or perhaps we should presume that with all the delays it would seem as if Trump’s criminal trials are taking forever and will never start? I realize I’m imagining worst case scenarios, but if we’re going to speculate we need to imagine every potentiality.
So how’s your imaginary Summer going so far? Do you imagine that our country would be better off? A lot of doom and gloom has been predicted that never came to pass as a result of the actions Attorney General Merrick Garland has taken. You’re free to imagine all the rosy scenarios your heart desires… Only time will tell if I’m wrong and the critics are right about him. Either way I imagine under different circumstance the Attorney General’s critics would have compiled a completely different laundry list of grievances to complain about. And who knows, in one of those imaginary situations I might even be the lead critic.