Where is Merrick Garland?

The public needs to know more about the January 6 investigation

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A few notes: I am not a lawyer. I do not work for the FBI or the Department of Justice. I am not now and never have been part of a large-scale criminal investigation.

But I am an American citizen. I am worried about the existential danger our democracy is facing, illustrated by the January 6 insurrection and the continuing efforts to undermine our system of voting and the rule of law. Speaking as a layperson, I worry that the pace of the investigation of that heinous event—and particularly of elected officials involved—continues to empower violent extremists and those determined to incite them. I worry that they believe that they have a green light to continue anti-democratic plotting and action without consequences.

Merrick Garland was sworn in as the US Attorney General on March 11. That was 64 days after the Capitol attack. Another 57 days have passed since then. In the grand scheme of things, in an investigation of this magnitude and gravity, these four months are barely anything.

But it is a reality that the public has been provided with almost no public expressions by relevant authorities—via press conference or written statements—that would increase confidence that the full array of insurrectionists will be held accountable. Meanwhile, legislative attacks on voter rights and free and fair elections continue daily and elected Republicans are still dangerously pushing the lie of voter fraud to prop up Trump and undermine President Biden.

It’s reasonable to wonder whether the guilty in powerful positions will ever face justice—and that includes Trump and lie-spreading operatives like Rudy Giuliani and Senators Cruz and Hawley. While Republicans are shamelessly advancing the lie that January 6 was no big deal and have exploited the filibuster to reject a bipartisan Congressional probe, it’s no surprise that fair-minded observers have begun to doubt whether democracy itself will survive.

That may sound like a lot to place on the shoulders of Merrick Garland. But surely he grasped the scale of what he was taking on when he raised his right hand and swore to preserve and protect the Constitution of the United States.

I’m not changing my previous optimistic view of AG Garland—not yet—because I remember that he called January 6 “the most heinous attack on the democratic process that I’ve ever seen” and pledged to investigate the deadly insurrection and follow all leads “wherever they take us.” But, as Washington Post columnist Jennifer Rubin rightly asked, “…will he go after its funders, instigators or organizers not present during the violence?”

He came before the cameras on April 21—the day after the conviction of Derek Chauvin—to announce the opening of a civil investigation into “unconstitutional or unlawful policing” in the Minneapolis Police Department. That’s deeply necessary, of course—life-and-death work—and I’m encouraged by his deeply held commitment to confronting white supremacy (in all its forms) and domestic terrorism. But I admit feeling first a surge of excitement that he was about to address January 6 and then a twinge of disappointment when he focused on other matters.

I hope there are rumblings in the Department of Justice and the White House about getting outside and giving people a glimpse of what’s on tap. Yes, they don’t want to put their ongoing investigations at risk by saying too much. But they need to say more than they have.

Pursued properly (far from what we witnessed during the Bill Bar travesty), the role of Attorney General is not a political position, per se. But it surely has enormous political implications, especially when so many elected officials may be linked to that criminal flash point of January 6, to the dark dealings that led up to it and to potential nightmares that are still unfolding because of it.

That too can slow things down and keep generally responsible public servants indoors and away from the public spotlight, especially if the worry is that a wrong move can trigger more violence. As Frank Figliuzzi said about former colleagues at the FBI and the DOJ, “…if they don't get it right, and if they take the wrong path on this, it can actually make things much, much worse.”

Yet let’s not underestimate the institutional tendency toward feet-dragging, dressed up as being methodical and careful. Note Pulitzer Prize-winning author Jesse Eisinger from his 2017 book, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives: He summarizes James Comey from 2002 when he was US Attorney in the Manhattan US Attorney’s Office, seeking to inspire its criminal division:

“Prosecutors…are required to bring justice. They need to be righteous, not careerist. They should seek to right the biggest injustices, not go after the easiest targets…government lawyers should neither seek to win at all costs nor duck a case out of fear of losing.”

I hope the day is fast approaching when we will hear from Merrick Garland. That would give Americans renewed confidence that Justice is seeking justice at every level—and that the shamelessly cynical crowd, convinced that the law does not apply to them, may eventually learn the truth is not what they think it is. The longer Garland waits, the more the threat to democracy increases.

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