Merrick Garland’s tragic epitaph: The man who wouldn’t prosecute Donald Trump

The story of Merrick Garland is a tragic tale of failure crowning an illustrious career.

The celebrated proecutor of Timothy McVeigh for the 1995 Oklahoma City terrorist bombing which left 168 dead, Garland was named and confirmed in 1997 to be a judge on the D.C. Circuit Court of Appeals. Beginning in 2013, Garland served as Chief Judge of the Court.

In March 2016, President Barack Obama nominated Garland to be a member of the Supreme Court, a position for which he was eminently well-qualified.

In a clear breakdown of American democracy, and a sign of the Republican Party’s emerging challenge to democratic government in the United States, Republican Majority Leader Mitch McConnell sat on Garland’s nomination for 293 days until a new Congress entered office in January 2017. Under McConnell, the Senate never held hearings on Garland’s qualifications, and never brought the nomination to the Senate floor for a vote on his confirmation.

In 2021, President Joe Biden nominated Merrick Garland to be Attorney General of the United States, despite the fact that he had no recent prosecutorial or Justice Department experience and had been sitting as an appellate court judge for the last 24 years.

The appointment was one of a number of top appointments made without there having been a serious search for the best candidate. It seemed that Garland was appointed simply on the basis that Biden felt the Democrats owed it to him, and the fact that he could be easily confirmed. He had been confirmed in 1997 by a vote of 76-23, including a majority of the Republican Senators.

Notwithstanding his qualifications as a judge, following an apparent crime spree by Donald Trump during his entire term of office and the attempt by Trump and other Republican officials to overthrow the results of the 2020 presidential election, Garland was not the right man for the job.

Garland brought his judicial temperament to the office of Attorney General, and used his oustanding reputation for probity to deflect criticism from the fact that the Justice Department did not appear to be investigating Donald Trump and his Republican cronies for the many serious felonies they appeared to have committed.

It is unknown whether he and Biden agreed not to prosecute Trump and other Republican officials.

One of Garland’s actions revealed how locked in he was to the decision not to prosecute Trump. When Laurence Tribe, an emeritus professor at Harvard Law School and the dean of American Constitutional Law scholars, published a powerful op-ed in the Washington Post on August 5, 2021, urging DOJ investigation of Trump,
Garland moved quickly to distract attention from Tribe’s article, getting the Post to publish an op-ed by Garland himself on voting rights that same day, at 6:09 p.m. This transparent ploy was successful.

While Garland at his Senate confirmation hearing swore up and down that he would not let political considerations affect his prosecutorial decisions, it is now clear beyond a doubt that he has done just that.

All available evidence suggests that he has been sticking by an adamant decision to not prosecute Trump and other Reublican officials for their many apparent felonies, including those related to trying to overthrow the government of the United States.

In this decision, Garland has received the tacit support of Democratic leaders from President Biden to Democrats in the House and Senate. They have, in effect, enforced a taboo against even raising the issue and debating the non-prosecution of Trump.

In a country governed by the rule of law, this should not occur.

The consequences of Garland’s decision, for the nation and for the Democrats, have been and are likely to be catastrophic.

By not prosecuting Trump, Garland has allowed the five-year statute of limitations to expire for a number of Trump’s apparent obstruction of justice offenses.

As each day ticks by without indictments, the statute of limitations expires on a growing number of Trump’s apparent felonies.

By not prosecuting Republicans who sought to overthrow the government, Garland and the Democrats have given a green light to efforts by Republicans to rig the elections in 2024, and possibly in 2022. They have been proceeding, in state after state, to do just that.

At the same time, by not prosecuting the Republican offenders Garland has given oxygen to Trump supporters and those operating in the right-wing media bubble to continue their attacks on American democratic institutions, and their attacks on Biden and other Democrats with a vitriol not seen since the days of Franklin D. Roosevelt.

For all of this, due to his adamant decision to not prosecute Donald Trump, Merrick Garland is deeply responsible.

Sadly, his political epitaph will now and forever read:

Merrick Garland, the man who wouldn’t prosecute Donald Trump.

The Trenchant Observer

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.

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