Is Merrick Garland finally ready to indict Donald Trump? | TheHill – The Hill

The media have been quick to rubbish Attorney General Merrick GarlandMerrick GarlandGOP senators seek probe of 'egregious' conditions at NJ nursing home The post-Trump era has begun Biden signs reauthorization of the Violence Against Women Act MORE for his failure so far to indict former President TrumpDonald TrumpGOP talking point could turn to Biden's 'underwhelming' Russia response House Oversight Committee opens investigation into New Mexico 2020 election audit Hunter Biden paid off tax liability amid ongoing grand jury investigation: report MORE over the Jan. 6 attack on the U.S. Capitol. They have tarred him with epithets worthy of Trump himself, such as Merrick the Mild and Merrick the Meek. And a host of former prosecutors and law professors have criticized his inaction, saying that Garland needs to indict Trump to vindicate the rule of law.

We dont know for certain, but it appears that Garlands Justice Department has yet to convene a grand jury to investigate the affair. Were they subpoenaing witnesses before the grand jury, we would have heard something about it from reporters hanging around the court house or from the witnesses lawyers.

Justice appears to be riding the coattails of the House select committee, which has served a flurry of subpoenas, and has already referred two recalcitrant witnesses, Stephen Bannon and Mark MeadowsMark MeadowsNC investigators open probe into Mark Meadows voter registration Is Merrick Garland finally ready to indict Donald Trump? Jan. 6 panel subpoenas Trump campaign adviser Cleta Mitchell, five others MORE, to Justice for criminal prosecution only to see Bannon indicted for a misdemeanor and Meadows so far uncharged some fourscore and seven days after the criminal reference.

The case against Meadows is a simple one, and the long delay is vexing. It is possible that Justice is using the time to investigate, but this seems unlikely in light of the Doric simplicity of the facts. Meadows refused to testify. Full stop. It is also possible that Justice had decided not to indict Meadows for contempt of Congress; but then, why the silence? If they had let Meadows know he was off the hook, he would have loudly told the press about how he was exonerated. Finally, it is possible that the government and Meadows are crafting a deal, some testimony in exchange for no indictment. Time will certainly tell us the answer.

Garland has vowed to follow the law and the facts wherever they may lead him. But many legal observers have concluded he is timid and overly cautious, fearful that we appear to be a banana republic indicting, and possibly jailing, our former leaders because they are now politically out of favor. Of course, the total answer is that we look like a banana republic if we dont hold our former leaders accountable for the serious crimes they may have committed, such as sedition, incitement to insurrection or conspiracy to defraud the United States.

Frustrated at the inaction, the redoubtable Harvard Law professor Laurence Tribe has called on Garland to appoint a special counsel. Tribe argues that a special counsel is the best way to reassure the country that no one is above the law, justice is nonpartisan and fears of political fallout will not determine the decision on whether to bring charges. Tribe says that such an appointment is imperative.

Appointment of a special counsel would give Garland some political cover, even though a special counsel is not institutionally independent of the Justice Department. Yet, so far, Tribes urgent clarion call has fallen on deaf ears.

Trumps strategy of course is to run out the clock. With the midterm elections less than eight months off, and a widely expected outcome that Republicans will take the House, the select committee investigating Jan. 6 may be on its last legs.

Yet, as the man said, it isnt over til its over. Only recently, there have been unmistakable signs and portents that the inquiry into the events of Jan. 6 may have brought Trump to his Watergate moment. The most notable events in recent days are as follows:

If Reffitt receives a stiff sentence, and Tarrio is convicted, they may be incentivized to cooperate with the government as did Oath Keepers member Joshua James, who is cooperating as part of a guilty plea for obstructing an official proceeding of Congress, and for seditious conspiracy culminating in the Jan. 6 attack. Such testimony of co-conspirators could provide evidence supporting broader conspiracy charges against Trump or his closest associates.

As the Washington Post concluded in its article reporting the Reffitt verdict: "The notion that Attorney General Merrick Garland is slow-walking charges against Trump or has decided not to go after him is inconsistent with the departments actions to date. Garland might just be warming up to take on the man whose refusal to accept defeat resulted in the most lethal armed insurrection since the Civil War."

As Trump signaled to the Proud Boys in his September 2020 debate with Biden, stand back and stand by. Garland may not be shooting so many blanks as his critics claim.

James D. Zirin is a former federal prosecutor in the Southern District of New York.

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Is Merrick Garland finally ready to indict Donald Trump? | TheHill - The Hill