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Merrick Garland Gave Trump Another Reason to Announce His Candidacy—Should We Worry?
Anna Moneymaker/Getty Images ;Joe Raedle/Getty Images

For months now, Trump has been teasing another run for the White House, holding campaign-style rallies to talk about his “policies” (such as they are) while speaking to close aides constantly about the subject.

Loyal sycophants like Sen. Lindsey Graham (R-SC) have begun to press openly for his run, saying for example that while Gov. Ron DeSantis of Florida is “a great guy, been a great governor,” it was “Donald Trump who destroyed ISIS, who killed Soleimani, who secured the border.”

There are a host of reasons Trump should not consider announcing soon, including up-ending an otherwise favorable midterm environment for the GOP by making the election a referendum on Trumpism; severely limiting the amount of money individual donors can give to help Trump by putting himself under stricter election rules; and drawing even more attention to the danger he presents right while America is focused on his misdeeds.

But there are at least two reasons Trump may ignore all this:

  1. to claim that the January 6 Committee and state and federal investigations are politically motivated
  2. following a report disclosed this week, to call Attorney Merrick Garland’s bluff on whether to open an investigation into a candidate actually running for president.

The first reason is well understood and is already part of Trump’s standard rhetoric about “witch hunts.” So let’s take a closer look at the second.

Rachel Maddow of MSNBC obtained and reported earlier during this week on a memo written and signed by Garland back in May of this year. In that document, which was circulated internally, he reminded the Department of “election year sensitivities” around investigations that might even have the appearance of being politically motivated.

The news of the existence of this memo stoked controversy once again because there is already widespread frustration with Garland’s perceived cautious approach to the investigation of those highest up in the former administration, including Trump himself, and their culpability around January 6th. The memo seemed to suggest that Garland could stand in the way of prosecuting the former president should Trump announce for president, as he is expected to do.

Before too much is made of this memo, we should note that it is nothing new for prosecutors to refrain from pressing ahead with investigations of political candidates when an election is looming. Fani Willis, the Fulton County DA, made clear that she was not going to have her special investigative grand jury begin issuing subpoenas until after the Georgia primaries were over, for example.

The consequences of investigators putting their fingers on the election scale was driven home in 2016 when James Comey, the former FBI Director, reopened the bureau’s investigation into Hillary Clinton’s email server with just days to go before the election, likely costing her critical and perhaps determinative votes in key swing states.

What is a bit different about this memo is its renewal of a policy put in place by former AG Bill Barr that requires “Additional Requirements” for the opening of any investigation of “Certain Sensitive Investigations.”

Those specifically include investigations into candidates for President. For such candidates, under the May 2022 memo, the commencement of such investigations would require the specific approval of the Attorney General.

This May memorandum is basically an admission that the buck almost certainly will stop with Garland when it comes to any investigation or prosecution of Trump, something we have assumed but never seen set to print. The office of the U.S. Attorney in D.C. is currently investigating things like the fake elector scheme and has seized the electronic devices of Trump-aligned attorneys John Eastman, Jeffrey Clark and Rudy Giuliani.

If it were to find sufficient evidence to warrant the opening of an investigation into Trump himself, a scenario that is growing increasingly likely, and importantly were Trump to become an actual announced candidate for President, then Garland would have to sign off on the investigation before it could proceed.

Trump has been telling his advisors that he believes the best way to stop investigations is to gain back the power of the presidency. As reported in Rolling Stone, Trump has “spoken about how when you are the President of the United States, it is tough for politically motivated prosecutors to ‘get to you',” according to a source who discussed the issue with Trump this summer.

“He says when he is President again, a new Republican administration will put a stop to the investigation that he views as the Biden administration working to hit him with criminal charges—or even put him and his people in prison.”

The existence of this memo and the policy that underlies it could be enough to tip Trump’s hand into announcing early, perhaps as soon as this fall, even before the midterms. If Trump believes Garland is too weak-willed to pursue a prosecution of the leading presidential candidate of one of our two major political parties, then he may call Garland’s bluff in the hope of grinding any investigation to a halt.

After all, the only reason Trump wasn’t indicted for obstruction of justice at the conclusion of the Mueller investigation is that he was protected politically as President. Yet Merrick Garland declined to take up that prosecution after Trump left office.

Given that backdrop, Trump could readily make the calculus to jump into the race officially because he would again, in some ways, receive special consideration from prosecutors. Republican hand-wringers might hope that Trump won’t upset their plans for November, but Trump doesn’t really care about the welfare of the party, only about his own political future.

If anything, he likely will delight in the chaos and panic that his announcement creates.

Garland’s critics are likely to point to the memo as evidence that this attorney general once again doesn’t have the backbone to charge the former president. They will claim it is further evidence of Garland giving himself an “out” for his own political cowardice.

But I look at this somewhat differently: The memo is evidence that Garland is watching all of this carefully and is willing to accept the responsibility for making the toughest political call the Department has ever had to make, namely prosecuting a former President who is likely going to run again.

There are larger considerations as well.

If the public, including Democratic voters, were to come to see the Department as merely a tool of whatever party is in power, that institution will have permanently lost credibility and effectiveness, and we will have been marched one step further toward authoritarian rule, just as we have seen happen with the Supreme Court lately.

Erosion of public trust in government can lead to the very kind of political nihilism in which fascism thrives. Trump is actually counting on Garland to try to protect the rule of law and the non-political nature of the Department, even through the anti-democratic onslaught by him and the far-right.

This is why news of this memo may lead Trump to announce his candidacy sooner rather than later as a way to thumb his nose at the Department and undermine faith in it and Garland even further.

Yet if Trump calls Garland’s bluff, say in September, that might be a bad mistake. A presidential candidacy announcement could supercharge Democratic voters at a time when Trump’s name doesn’t even appear on the ballot—something that happened in both the 2018 midterms and the senate run-offs in Georgia in January of 2021, when that state sent two Democratic senators to Washington and flipped control of that body.

Every candidate for GOP office would be asked whether they support Trump for President, and they wouldn’t be able to dodge by saying it’s merely some hypothetical question. Should enough Democratic voters turn out to deny the GOP control of the House (something currently considered unlikely), Republicans would gain no mechanism to hamstring or meddle with the Department’s work through “investigative committees” and impeachment hearings.

And if Trump ruins the elections once again for the Republicans, it would further splinter their party and encourage his rivals to begin their attacks on his presumptive nomination.

And in any case, right after November’s election, Garland could simply announce that there are still two years left before the presidential election, so any investigation into Trump beginning post-midterms may proceed without the appearance of political motivation. Indeed, waiting until after the midterms might buttress that very argument considerably.

At this point we should acknowledge that a public, pre-midterm investigation into Trump is highly unlikely even without an announcement by him that he is running again.

Much as Democratic candidates might be eager to have an official investigation hanging over the GOP going into the elections, it’s hard to see how the Department could proceed with one without the appearance that it is politically motivated—the very thing that traditionally the Department has been careful to avoid.

Those who urge the Department to hasten its work, or otherwise go back on its standard policy of not pursuing investigations so close to an election, ultimately are advocating the very kind of politicized justice system and collapse of norms that the far-right hopes also to achieve.

While this will no doubt frustrate many voters and lead to further calls for Garland’s resignation, the larger picture is already apparent if we look upon it clear-eyed: Through its current, ongoing investigations into the fake elector scheme and the January 6 rally organizing and funding, the Department will continue to work its way up as far as the evidence will take it, and if that includes the former President, he will not be immune from prosecution even if he announces his presidential candidacy for 2024.

It will simply mean that Garland himself will decide whether and when to green light that investigation, which would in all probability happen sometime following the midterms.

If the decision at that point is to not prosecute Trump, I will be among the first to call for the Attorney General to step down. But if Trump announces his candidacy before the midterms, in some ill-advised effort to thwart his further prosecution by the Justice Department, I would not count this against Merrick Garland.

In fact, I would see it as an unforced error by Trump that significantly weakens his own political future while not changing the calculus around investigating or charging him at all.