You Should Blame Merrick Garland

Donald Trump’s reascendance to the presidency has left Democrats grasping for explanations and counterfactuals. Would we have won if Biden dropped out sooner? What if there had been an open convention? What if Kamala had focused less on cultural issues? More? 

But maybe the most compelling counterfactual, the “what if?” that should haunt Democrats the most, is this one: what if Merrick Garland wasn’t Biden’s Attorney General? 

There’s no real question that the prosecution of Donald Trump for the events leading up to January 6th was exceptionally slow. The first public confirmation that the Department of Justice was even investigating the matter was in January 2022. It wasn’t until November 2022 – two full years after Trump’s fake elector scheme was in motion – that Merrick Garland appointed Jack Smith as special counsel for the investigation, and it wasn’t until the summer of 2023 that Trump was actually indicted.

The rest of the story is history: the court case got snagged on the question of presidential immunity. The Supreme Court stalled for months before ruling for Trump in the summer of 2024. The DOJ reformulated the case, but dropped the charges after Trump won. Here we are.

There has been a lingering question of what exactly was happening inside the Justice Department between Joe Biden’s inauguration and Trump’s indictment. Had they wanted, the DOJ could have put together a bare bones indictment and had Trump in handcuffs in a matter of days. Instead, they stalled, though it’s somewhat unclear why. Was Garland trying to build the most robust case possible? Was he nervous about political blowback? It was a self-evident failure, but the details were sparse and speculative.

Now more of those details are coming into the light. An upcoming book by Carol Leonnig and Aaron C. Davis confirms some of the worst suspicions: the DOJ didn’t convene a grand jury until January 2022, and it took another ten weeks before the FBI would formally begin its investigation into Trump himself. Garland also apparently put the investigations on an unnecessary hiatus before the 2022 midterms:

And so it seems the cynical narrative is at least partially right: the Justice Department was very actively trying to appear above the partisan fray, and in doing so they dragged the prosecution on long enough for Trump to wriggle free.

The great irony of this is that people like Merrick Garland think that they’re eschewing politics. The reality is the opposite: the careful avoidance of anything that appears political is itself a political act. It is a performance, intended to convey to your audience that you are neutral and unbiased. It’s an effort in institutional PR.

Institutions from law enforcement to the media get caught in the same cycle. In their efforts to avoid the appearance of politicization, they just end up engaging in a different type of politics. At the same time, they lose sight of their actual purpose. The institutional mission becomes subjugated to the pursuit of good optics. Garland prioritized the appearance of neutrality and restraint, and the end result was less justice.

There is a theory I often see floated that Garland himself is not to blame. Even if his prosecution was slow and meandering, the theory goes, the real culprit here was the Supreme Court, which shielded Trump with grants of immunity. Matt Ford, who covers legal issues for the New Republic, argued on Bluesky that “[i]t doesn’t really matter when or how the cases were brought if [immunity] was always going to be the endpoint.”

The argument rests on the idea that the Supreme Court’s decision in Trump v. United States was an inevitability – that whenever and however the government tried to prosecute Trump, the Court was ready to jump in to save him.

But that misunderstands the politics of Trump’s return to office. Trump’s popularity plummeted after January 6th. One Politico poll found that Trump’s net approval rating dropped 15 points among Republicans and independents; a Quinnipiac poll found a 30% drop among Republicans. 

As time passed, though, a lot of those views softened. The percentage of Republicans who strongly disapproved of January 6th declined by 20 points over the span of Joe Biden’s term. Trump’s popularity waned among Republicans through 2022, but gathered steam again as it became clear that he was the inevitable party nominee. Polling by the Washington Post and University of Maryland found that by the end of 2023, Republicans were “less likely to believe that Jan. 6 participants were “mostly violent,” less likely to believe Trump bears responsibility for the attack, and [] slightly less likely to view Joe Biden’s election as legitimate[.]”

The Garland DOJ had the opportunity to prosecute a disgraced ex-president with no political future. Instead, they dragged their feet and ended up indicting the Republican Party’s presumptive nominee. By the time the Supreme Court Justices were deliberating, they were functionally deciding whether the Republican Party had a viable candidate for the presidency.

In other words, it wasn’t that the Court’s decision in Trump v. United States caused the failure of the Trump prosecution. It was the other way around. Garland slow-walking the case allowed Trump to rebuild his political momentum, which in turn gave the Court both reason and license to rule in his favor.

This isn’t to exonerate the Court, of course. That would be bad for my brand. But the Court’s conservatives are political creatures, and they respond to their political environment. That environment was built in large part by Merrick Garland’s Justice Department, which spent years trying to avoid politics and found them anyway.