Above all others, there is one question that Democrats cannot stop asking: “Why hasn’t Attorney General Merrick Garland indicted former president Donald Trump?”
The frustration with Garland has built steadily over the past year, since he was appointed by President Biden as America’s top law enforcement officer. Recently, the polite Garland-nudging by Democratic politicians and media pundits has given way to a ferocious anger at Garland’s failure to bring any significant accountability to what federal prosecutors, constitutional scholars and ordinary citizens legitimately see as an endless series of crimes and ethical violations by Trump.
Trump’s campaign began with a porn star pay-off that landed his personal attorney in federal prison. His presidency included an extortionate threat to withhold American aid unless Ukraine manufactured dirt on his political opponent. His re-election bid ended with a demand that Georgia’s secretary of state “find” enough votes to give him a state he did not win. He instigated a violent attack on the U.S. Capitol. And he burned, flushed and stole presidential documents on his way out of the White House.
I get why people are angry; I count myself among them. It’s fair to say that any ordinary citizen who committed similar offenses would have been swiftly indicted by the Justice Department. Want proof? Look at the 750 Capitol rioters who have already been arrested. They are minions compared to the man who instigated the attack and on whose behalf they acted — the man the House Select Committee investigating the Jan. 6 Capitol riot recently referred to as a member of a “criminal conspiracy.”
But, having worked as both a state and federal prosecutor and as a defense attorney, I know that there are Justice Department considerations in play beyond a simple analysis of whether there is sufficient evidence to indict Trump on criminal violations.
Every competent prosecutor knows why Garland and the Department of Justice have not indicted Trump. I’m going to say it out loud.
If Trump were charged, it’s unlikely he would negotiate a plea deal. Instead, he would go to trial and make every step of the process a platform to cast himself as a victim of a vindictive Biden administration. He would use the renewed attention to spew lies about the legitimacy of the 2020 presidential election. And he would raise money, lots of money, to fund his anticipated 2024 presidential campaign.
But most important, despite a mountain of evidence that would convict most people many times over, Trump would not be convicted. Criminal convictions require a unanimous verdict. On a 12-person jury, there are going to be Trump supporters.
The Republican National Committee recently proclaimed that the people responsible for the violent attack on the U.S. Capitol were engaged in “legitimate political discourse.” Members of Congress, right-leaning media, and much of the Republican base consider the Capitol rioters patriots.
And so, it is a near certainty that at least one juror would accept the widely held Republican position that any prosecution of Trump is political persecution. That would all but ensure a hung jury in any case brought against him. Such a circumstance would have ramifications far beyond the prosecution of Trump.
Ninety-eight percent of federal cases are resolved short of a trial — mostly by guilty pleas. The federal court system would be crippled if many more defendants started exercising their right to a jury trial.
Pulling back the curtain to reveal a Justice Department incapable of convicting the former president, despite overwhelming evidence, would be a disaster for DOJ. It could lead to defendants across the country taking their shot, hoping they too could convince at least one juror to hang their case. Garland and DOJ attorneys know this and must be terrified at the prospect.
I suspect that this concern has also motivated sentencing recommendations in the Capitol rioter cases that do not appear to appreciate the magnitude of the crime. The chief judge handling these cases has slammed federal prosecutors for making impassioned speeches about the seriousness of the insurrection, while simultaneously recommending misdemeanor plea deals and sentences of probation for all but the worst offenders. But DOJ attorneys know that if they don’t offer sweetheart deals, and a Capitol rioter gets a hung jury with a “patriot protestor” argument, others will demand trials and bring chaos to an already overburdened system.
It wasn’t always this way. Until Trump made blatant political corruption acceptable to a large segment of the Republican base, rigorous jury selection and judicial admonitions — that instructed jurors to follow the law and not be influenced by personal beliefs — stood a chance. Those days are gone. Now, Republicans are only the “law and order” party until one of their own is caught breaking the law.
The Justice Manual, which sets forth the principles of federal prosecution that act as a guide for all federal prosecutors, states that a prosecution should commence when there is sufficient evidence to “obtain…a conviction.” The same manual also considers the circumstance of a popular figure against whom there is strong evidence, but whom jurors are unlikely to convict. It allows, though does not require, prosecution.
Recognizing that he will not be able to secure a conviction, despite solid evidence, Garland can decline to indict Trump – proving that the rich and famous operate above the law. Or, Garland can indict Trump, ignite a political bonfire, fail to secure a conviction, and potentially debilitate a criminal justice system that has always relied on defendants pleading guilty because they believed that indictments lead to convictions. Whatever Garland’s choice, Donald Trump will continue to do what he does best: Get away with it.
Stern is a former federal prosecutor.