The Biden administration is enabling a Trump comeback

Merrick Garland and Donald Trump.
Merrick Garland and Donald Trump. Illustrated | Getty Images, iStock

Democrats have had what any sane political party would consider a remarkable stroke of luck: Donald Trump, the leader of their opposition has (allegedly) committed many, many crimes, both while serving as president and before, and Democrats now control the federal law enforcement apparatus. As Barbara McQuade and Joyce White Vance write in The Washington Post, Trump is almost certainly guilty of obstruction of justice during the Mueller investigation, of attempting to solicit bribes from Ukraine, and of multiple campaign finance violations (and likely much, much more).

But so far, Attorney General Merrick Garland is resisting a full-scale investigation of Trump. For instance, he declined to open a criminal investigation of the recent revelation that the Trump Department of Justice spied on journalists and his political enemies (instead handing the issue over to the comparatively toothless inspector general). On the contrary, Garland's DOJ is continuing to spend public money defending Trump from a defamation suit filed by writer E. Jean Carroll (who accused Trump of rape). At the same time they are arguing that suits against Trump and his attorney general Bill Barr over the brutal attack on Lafayette Square protesters should be thrown out, and as Greg Sargent writes at the Post, actively concealing multiple documents related to Trump's abuses of power and alleged crimes. So far, Garland is effectively conspiring with Trump to help him escape accountability.

What gives? There are a number of plausible explanations for this behavior. First is classic Democratic timidity — Garland is supposedly a real tough-on-crime guy when it comes to the working class, but it's a lot easier to throw penniless gang members in jail than it is rich politicians. The latter causes a lot of controversy and complaints from people with very large platforms.

A related factor is Democrats' paralyzing fear of being perceived as "biased" in their use of political power. This is a big reason why they did not pass D.C. statehood when they had gigantic majorities in Congress in 2009-10: because it would have made the party look grubbily partisan. The fact that it also would have been entirely legitimate according to the basic principles of American government — today there are about 700,000 American citizens in D.C. who are taxed without congressional representation — somehow doesn't rate the same level of consideration.

Republicans look for any way to camouflage their ruthless will-to-power with a tiny fig leaf of neutrality — just look at Mitch McConnell's ever-evolving "rules" for Supreme Court confirmations — and if they can't find one, they proceed anyway. Meanwhile Democrats shrink from action if they imagine Chuck Todd scolding them, even if they are remedying some historic injustice in the process.

By the same token, conducting an investigation that even appears to be politically motivated gives most establishment liberals the vapors. "One of Trump's most flagrant and dangerous norm breaches was his repeated, publicly stated desire that the Justice Department prosecute his real and perceived political enemies," wrote law professor Andrew Kent at the liberal establishment website Lawfare in December. He then developed an explicit argument to allow Trump to get away with breaking the law:

Avoiding any hint of perpetuating this kind of awfulness, so reminiscent of tyrannies and banana republics, is an entirely plausible reason why Biden could want to avert criminal enforcement action against Trump and his circle. [Lawfare]

For some reason Kent does not discuss the fact that powerful people being able to break the law with impunity is also highly characteristic of "tyrannies and banana republics" — indeed arguably more so than politically motivated prosecutions, because those could still be directed at actual legal violations, even if motivations were not completely pure (such as, to pick an example at random, if the previous president committed a bunch of clumsily obvious crimes). By definition, the rule of law means that nobody, not even presidents or former presidents, should be able to break the law without consequence.

Any nine-year-old could instantly understand this point, but jingoist chauvinism runs so deep in the liberal legal establishment that it is basically impossible for them to imagine American politicians being really corrupt and deserving of jail time.

I hoped, probably naively, that the scale and number of Trump's (alleged) violations of the law would break through this corruption-enabling mindset. I thought especially that Democrats would think twice given that Trump absolutely would not show them the same courtesy — indeed, half his time as president was spent trying to gin up some fake investigation or prosecution of his political opponents. If Trump was indicted and convicted after a fair public trial in which the facts of his crimes were made clear to everyone, that would surely make it harder for Trump to run for and win re-election in 2024, even with the GOP eagerly cheating.

But it seems fecklessness runs so deep in the Democratic Party that not even basic self-preservation can motivate them to enforce the law against the rich and powerful. Garland should discover some principles or he should resign.

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