Merrick Garland’s unprecedented dilemma

In the new year, Merrick Garland will face two unprecedented scenarios: He could become the first attorney general in American history to indict a former president, as well as the first attorney general to be impeached by Congress. 

For months, Garland has faced the unenviable prospect of having to eventually decide whether or not to prosecute Donald Trump. There are two ongoing federal investigations into the former president: One involving his possible mishandling of classified documents and presidential records, and the other concerning his role in the Jan. 6, 2021 attack on the U.S. Capitol. 

This month, the House Select Committee that was separately investigating Jan. 6 unanimously recommended that the Department of Justice pursues at least four criminal charges against Trump for attempting to block the peaceful transfer of power after losing the 2020 election. 

Declaring that “one man,” was the “central cause” of the attack on the U.S. Capitol on Jan. 6, the committee released a scathing report detailing their findings and recommended that Trump be charged with obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement and incitement of insurrection. 

Though criminal referrals from Congress have no legal weight, and the DOJ’s own investigation into Jan. 6 is still running its course, the committee’s final report adds to the pressure that has been building on Garland for months.  

Seeking political insulation, the attorney general appointed an independent special counsel, Jack Smith, to handle the DOJ’s active investigations into Trump after he announced his intention to seek the presidency again in 2024. 

But regardless of what Smith recommends, Garland will have the ultimate say in bringing an indictment, as the attorney general has the full power to override a special counsel’s recommendation. Appointing a special counsel does not offer Garland any real degree of political absolution, and he will personally bear the consequences of the department’s eventual decision. 

Based on the current rhetoric from Republicans in the House, these consequences will likely include an impeachment inquiry into his conduct as attorney general. House Republicans already filed two impeachment resolutions against Garland in the 117th Congress, and far-right Representative Marjorie Taylor Greene (R-Ga.), who will become one of the most prominent members in the new Republican caucus, has indicated her desire to move forward with impeachment in a GOP-controlled House. 

Even if House Republicans are successful in impeaching Garland with their slim majority, he is not at real risk of being removed by the Senate, which is controlled by Democrats. There is also a sizable group of Republican senators who have rejected the idea that Biden administration officials should face impeachment en masse. 

Garland is, of course, no stranger to the Republican Party’s brazen politicization of the judicial system. He was nominated to the Supreme Court by President Barack Obama to replace the late conservative justice, Antonin Scalia, in February 2016 and the Republican-controlled Senate blocked proceedings for nearly one year, leaving the highest court one justice short for most of its term.  

It must be said that, despite the right’s baseless accusations of weaponized politicization, there is no reason whatsoever to believe that the attorney general is motivated by anything other than a sense of duty. If Garland makes the determination to charge Trump criminally, it will be because Trump broke the law.  

That being said, we cannot ignore this reality: An opposing party bringing criminal charges against a former president — who is again running for office — would set a dangerous and divisive precedent in the United States, and could turn the justice department into a perpetual political weapon. 

Even if A.G. Garland, Smith and the Department of Justice have Donald Trump dead to rights, an indictment could embolden far more nefarious actors in the future to prosecute their political opponents with much less evidence of criminality.  

It is not an exaggeration to suggest that this could trigger a constitutional crisis, a civil war — or both. Regarding the latter, Republican Sen. Lindsey Graham over the summer predicted, “riots in the streets” should Trump be indicted, and in the same interview criticized the so-called “double standard” that many on the right believe exists for the former president. 

As damaging as an indictment would be to the country, an even greater threat to the republic would be if Garland makes the decision not to prosecute Trump if there is clear and unequivocal evidence that he committed a serious federal crime or multiple.  

That could jeopardize America’s endurance, stability and place in the world. It would send the message to our allies and adversaries alike that America treats its leaders as if they are immune from the law, which goes against core democratic principles. 

No one in the United States, not even the president, should be above the law. If Donald Trump crossed the line into criminal conduct, he should face justice.  

But there is no denying that Merrick Garland, as the chief law enforcement officer in the United States, will face an unprecedented set of challenges in ultimately determining where that line is. 

Douglas E. Schoen is a political consultant who served as an adviser to President Clinton and to the 2020 presidential campaign of Michael Bloomberg. His new book is “The End of Democracy? Russia and China on the Rise and America in Retreat.”