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Estrich: Merrick Garland is getting ready for his close-up

By Susan Estrich

Published: July 31, 2022, 6:01am

The shocking revelations of the Jan. 6 committee, and the news that Vice President Mike Pence’s top aides are testifying before a criminal grand jury investigating the matter, have given new urgency to the question of whether the Justice Department will try to prosecute the former president. Ultimately, that is a decision that must be made by the attorney general himself. My money is on Merrick Garland to do the right thing.

The attorney general and I were classmates and close friends many years ago. I have no inside information. But I do have some insight into Merrick’s character, and it gives me comfort that he will approach the decision in exactly the right way.

Let’s be frank. In an ideal world, there would be no need to prosecute the former president for his role in seeking to overturn a democratic election. In an ideal world, he would already be so irrelevant, so much a part of a past chapter we would collectively shelve, that we would already have closure about his administration.

In the real world, Trump — and Trumpism — remains the threat it proved itself to be. Lest anyone dismiss the former president and his arch supporters, look at the tape again; think about the man who not only incited the violence but wanted to go with the armed protesters, clearly saw them as his armed forces. The president and the Proud Boys.

It’s true that a majority of Republican primary voters are leaning toward other candidates. But make no mistake; the plurality is still with Trump. His candidates may not win every primary, but he continues to be the dominant force in one of our two parties. It is certainly not inconceivable that should the Justice Department decline to prosecute, the man could be the nominee of the Republican Party. And, given high enough inflation and an ugly rematch, he could win. For real.

He should not.

How can a man who was willing to shred the Constitution in service of his own ambition once again run — and win — the highest office? We already know he will stop at nothing. We already know that he wanted to join the armed protesters at the Capitol. Was he planning to march in with them to stop the constitutionally required ballot counting? Why else go? The very idea of a United States president marching up the stairs of the Capitol to demand that the ballots be ignored to keep him in office should send chills up the backs of all of us, regardless of party. This is the sort of thing that happens in third-world dictatorships, not first-world democracies. And when it does happen in developing countries, we expect — we even train — the judiciary to stand up to it.

Should we accept anything less from our own criminal justice system?

Merrick is a former prosecutor and a careful man. He will not go off half-cocked. He will, until it is time for the final decision, give room to the prosecutors assigned to run this investigation. He will, I would bet, give enormous weight to their recommendation. Prosecuting a former president of the United States is not a decision to be made lightly. It will divide the country, without a doubt. The fierceness of the loyalty of a minority of Americans to the former president includes some of the loudest mouths in the media, as well as many committed Republicans who are still looking for holes in the Jan. 6 findings.

It makes sense to let the grand jury process take its course, to cooperate with the committee, to assure that all relevant testimony is available to the Justice Department. But the buck doesn’t really stop in the grand jury room: Grand juries as a rule do what prosecutors ask them to do, which means the decision will ultimately belong to the prosecutor-in-chief, who is the attorney general. I have confidence in the process, and most of all in Merrick.

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