Merrick Garland, Donald Trump and the fall of France

During the past three years, there have been numerous critics of the Justice Department under Attorney General Merrick Garland’s leadership. I have been among them. It did not seem encouraging that in one of his first major acts after taking office, Garland intervened in the E. Jean Carroll lawsuit to argue that Donald Trump had presidential immunity in a case that had no bearing on any possible scope of his presidential duties.

Garland’s apparent slowness when it came to appointing a special counsel to prosecute Trump was also puzzling. Some of my correspondents, a few of them with law degrees, scoffed at my amateurish take on the matter: Main Justice was playing a diabolically clever game of twelve-dimensional chess, they assured me, and had Trump right where they wanted him. The legal art, or so I was given to understand, is so infinitely subtle that outsiders were committing a species of lèse-majesté to question Garland’s approach. 

On March 22, the New York Times published a lengthy and revealing tick-tock account of the Justice Department’s efforts to prosecute Trump. It largely confirms the widespread impression that the investigation has been much too slow.

Its sluggish pace was also compounded by erroneous leads that fizzled out. Garland first concentrated on “following the money,” but unlike in ordinary organized crime or drug cases, the insurrection was about political power in the first instance, not money. The case was patently not about who paid for insurrectionists to stay at the Comfort Inn in Arlington (if they paid for it themselves, was Trump off the hook?), but rather the overt acts of the insurrectionists — and of Trump himself — which were painstakingly documented from every angle by television cameras.  

Aside from the missteps and delays, two paragraphs in the Times’ piece underline a rather breathtaking attitude at Justice:

In trying to avoid even the smallest mistakes, Mr. Garland might have made one big one: not recognizing that he could end up racing the clock. Like much of the political world and official Washington, he and his team did not count on Mr. Trump’s political resurrection after Jan. 6, and his fast victory in the 2024 Republican presidential primary, which has complicated the prosecution and given the former president leverage in court.

In 2021 it was “simply inconceivable,” said one former Justice Department official, that Mr. Trump, rebuked by many in his own party and exiled at his Florida estate Mar-a-Lago, would regain the power to impose his timetable on the investigation.

One has trouble taking at face value the claim that “the political world and official Washington” had written Trump off politically in 2021. And was his future political viability literally “inconceivable”? A majority of House Republicans voted to nullify Biden’s election victory just a few hours after the insurrection, and shortly after that a solid majority of Senate Republicans voted against an impeachment conviction. Soon, Republicans whose very lives had been threatened by the mob, like then-House Minority Leader Kevin McCarthy, would obediently make their pilgrimage to Mar-a-Lago.

But the key factor, as the Times article clearly demonstrates, was always time. Garland’s by-the-book, plodding approach played into the one successful legal strategy Trump has consistently used his entire adult life: delay. One does not have to be “official Washington” to read the calendar and recognize that it will be an election, not a single piece of elusive evidence, that by default will decide Trump’s legal status and the future of democracy in America.

As the tagline goes, justice delayed is justice denied. It is one of the abiding traits of the Anglo-American legal system that its workings can be parried by endless motions, continuances and appeals — a process that blatantly favors the rich, de facto granting them a legal near-impunity close to that of aristocrats in a feudal regime. 

Garland, then, grasped neither the political realities, the stakes involved nor the imperative of timely action. He has been like a chess player doggedly pursuing his prepared game plan while ignoring how his opponent’s countermoves have changed the dynamic of the match. 

Garland’s by-the-book, plodding approach played into the one successful legal strategy Trump has consistently used his entire adult life: delay.

Given the existential stakes involved, and the fact that judicial politics has become — at least to this point — war minus the shooting, a more appropriate analogy than chess might be armed conflict, the most violent, kinetic and unpredictable of human activities. Unlike in chess, in war the rulebook is tossed out the window. The single most important factor in war is often time: It invariably works for one side and against the other, upsets strategies, defeats commanders who disregard its iron constraints.

Garland brings to mind the commander of the French Army in 1940, Gen. Maurice Gamelin. He was regarded as having an intelligent and subtle mind, and had risen to the top via a series of staff jobs. He was a believer in methodical battle, the precise coordination of military force according to a rigid timetable. 

As he prepared to face a German invasion in the spring of 1940, Gamelin and his staff were sure the German army would come at them the same old way, through Belgium, as in 1914. In other words, he prepared to fight the last war against a normal, predictable opponent. Accordingly, when the invasion began, he would send the cream of his army into Belgium to cut off the invader (and incidentally keep war damage away from French territory).

But as history records, the enemy did not come the same old way. In one of his demonic flashes of intuition about the weakness of opponents, Hitler changed his army staff’s long-standing plan, instead sending his main strike force further south, into France. Belgium would merely be a baited trap.

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Once Gamelin duly sent his best units north, they were outflanked and ensnared. It would become a race against time to extricate them. Alistair Horne’s classic account, “To Lose a Battle,” reports that Gamelin’s headquarters lacked telephone or other electronic links to his field commanders; it had to make do with dispatch riders. Horne quotes contemporaries calling the headquarters “a submarine without a periscope”: a huge blunder when facing the Wehrmacht’s speedy, flexible operational plans. The French army was doomed.

Like Gamelin, Garland assumed he had all the time in the world to take down a conventional opponent. In his metaphorical submarine without a periscope, the attorney general and his senior staff were oblivious to what was occurring on Capitol Hill just a few blocks from the Justice Department building.

He was also facing an unconventional opponent. While the Germans’ secret weapon was tanks, Trump’s is his comprehensive propaganda machine. His perpetual railing at perceived enemies and claims of martyrdom have had a perverse effect on DOJ: Garland’s painstaking effort not to appear political has in fact created its own form of politicization, expressed in excessive circumspection and careful weighing of each legal move for its political implications. Beyond causing agonizing and seemingly endless delay, that amounts to a kind of psychological submission to Trump’s strategy. 

No historical analogy is perfect because concrete circumstances always differ in detail. But human behavior is remarkably consistent — particularly the tendency of people under stress and high stakes to undermine their own success — and examples from the past can illuminate present issues. Above all, time’s irreversible arrow is always a constant in human affairs. We can hope that when placed under stress, the institutions of democracy will prevail. But in politics as in war, hope is never a viable strategy for victory.

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from Mike Lofgren on politics and history


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