As it happened, I caught Neal Katyal on MSNBC the other night where he tried out his “three audiences” theme to the most obedient audience possible. It didn’t work then, and it doesn’t work in his effort to manufacture an excuse for Attorney General Merrick Garland’s failure to do what he, channeling Larry Tribe, contends is unquestionable. Why has the Department of Justice not prosecuted Donald Trump?
Critics of the hearings who say they are too detailed and dry miss the multiple intended audiences. When I argue before the United States Supreme Court, there are several audiences. One is the nine justices. Another audience is the public — both in the courtroom and listeners online. And there’s a third audience: history.
Does it work for you? Probably not, but that’s likely because you’re a lawyer and realize this is nonsense. When he, or anyone else, argues before the Supreme Court, he argues to win that case. It may also play with the public, and historians may someday parse the argument, but if he loses before the Supreme Court, nothing else matters. And if he’s serious about dividing his focus between winning the case and how the public and historians will feel about him, then he has no business being in the well representing a client.
The January 6 Committee isn’t a court, and it’s purpose can be framed in various ways to make it sound better or worse, more or less political. That Trump’s claim was, as Bill Barr profanely expressed it, “bullshit” is interesting not so much for its substance, but for the fact that insiders, denominated “Team Normal,” told Trump it was false. “Team Rudy” argued otherwise because of course it did. And so the committee, bipartisan to Dems and made up of Dems and RINOs to MAGAheads, is putting its evidence on the table for all to see in the hope that anyone open to the possibility that Trump is a lying, amoral, vulgar, narcissistic ignoramus will see it for themselves.
But if it’s so clear, so obvious, what the hell has Garland been doing over the past 17 months? This is where Katyal’s “three audience” theme comes into play.
Merrick Garland and high officials at the Justice Department, not nine justices, are the immediate decision makers. Mr. Garland has in the past been cagey about whether there is an investigation into the former president. Yet it’s unthinkable that the Justice Department should not pursue one.
Katyal is arguing that the DoJ is one of the three audiences of the Committee, waiting patiently to see what it finds, whereupon he will pick up the gauntlet and prosecute Trump.
But we’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry. Witnesses before grand juries wind up talking to the media, for example, or those witnesses may file court actions to try to block the investigation. None of that appears to have happened.
Then again, this isn’t a normal investigation. Mr. Garland has known from the start that Congress is investigating the whole set of facts involving an attack on its own seat of government, and he may have made the conscious choice to hold off until he sees what Congress has developed.
He “may” have. He may be a space alien. But as Katyal correctly notes, there has been no sign from the DoJ of any investigation into Trump’s role in the insurrection, for if there had been, there isn’t a chance in hell that it would not be known. Put aside whether there would be a prosecution following an investigation, a separate question. There has been no investigation.
Is Garland biding his time while the 1/6 Committee puts on its show to see what it comes up with, to see how the public reacts, to figure out how history will judge him for his action or inaction? He knows that no former president has ever been prosecuted. He knows that the nation is divided, and that a not insubstantial portion of the nation will perceive any attempt to prosecute Trump as pure partisan politics, just as it perceives the Committee’s investigation.
But Garland knows something that Neal Katyal apparently doesn’t. Cheap talk on MSNBC or the Times doesn’t a case make. Fuzzy argument may serve for punditry, but a trial will require evidence beyond a reasonable doubt of every element of a crime. And even if he produces that evidence, it will be spun by unduly passionate as lies to get their adored Darth Cheeto.
And even though this should seem to obvious to need saying, we’re almost two years past Trump’s unceremonious ouster, and the DoJ hasn’t gotten off the dime. There isn’t a chance in hell that he could bring a case to trial before the 2024 election even if he indicted tomorrow. To the extent there was a window of oppotunity, there remains at most the tiniest crack as its slamming shut.
What the January 6 Committee is doing, and has done, is shift the onus onto Garland. The committee can’t bring criminal charges, but Garland can. The committee members have said repeated Judge Carter’s admonition that a crime is more likely than not. The impression, if not their express assertions, that Trump tried in his own inept way to orchestrated a coup because he couldn’t suffer the humiliation of being a pathetic loser could not be more clear. Is Trump “above the law”?
Mr. Garland has these charges to consider, and potentially others such as wire fraud, arising out of evidence the committee presented in the second hearing about Mr. Trump misleading his donors. Based on the evidence presented so far, it seems as if the most likely charges are obstruction of an official proceeding and conspiracy, and not seditious conspiracy.
If Neal Katyal, a lawyer, a lawprof, a Supreme Court advocate, a former acting Solicitor General and a regular on MSNBC, says so, can the public audience be wrong to believe him?
If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department. Because history will.
The public may care. History will judge. The committee and Katyal are putting the screws to Garland to force him to act. But for the attorney general and the assistants charged with trying the case, there is only one audience, the jury. And if the jury returns a verdict of not guilty, who cares how the other audiences feel?
No comments:
Post a Comment