Much has been written lately about whether Merrick Garland will prosecute Donald Trump for one or more crimes.
It is easy to be an armchair quarterback, but it is altogether different if you are on the field leading the huddle. At this point, we certainly have no idea whether Garland will go for long yardage and actually prosecute Trump.
Both the Mueller Report and the Jan. 6 hearings have provided compelling documentation of unacceptable, if not illegal, conduct by Mr. Trump, his associates and his family.
However, at least 30% of America sees both as baseless witch hunts unfairly targeting the former president.
According to various polls conducted by news organizations, a majority of Americans believe that Trump should be charged and convicted of crimes from his actions on Jan. 6.
Not surprisingly, there is a partisan bias to those beliefs. More than 80% of Democrats, but fewer than 10% of Republicans think Trump should be prosecuted.
It is hard to accept that a divided America would not experience strife if the Department of Justice brought criminal charges against Trump.
Furthermore, the case would have to be proven beyond a reasonable doubt to 12 jurors. If 30% of America believes Trump is innocent and that the trial would be conducted by a kangaroo court, then it is probable that at least one of the jurors would come from that group.
That would make obtaining a unanimous verdict difficult, if not impossible.
Machiavelli purportedly said, “If an injury has to be done to a man it should be so severe that his vengeance need not be feared.”
In 2016 Trump famously stated, “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.”
Both quotes contain a measure of truth that Merrick Garland must weigh as the DOJ considers whether to file charges against Trump.
President Gerald Ford lost the 1976 election, in part, because he pardoned Richard Nixon to end what he called “our great national nightmare.”
Nixon understood that he must go away quietly in exchange for a pardon.
Although the charges that would be brought against Trump for his Jan. 6 actions make Nixon’s crimes pale by comparison, Trump is incapable of going away quietly. Furthermore, he enjoys greater support than Nixon did.
Prosecution of Trump by the DOJ would clearly energize his base and further divide America. But even if Trump was convicted, a Republican president elected in 2024 could pardon him.
That would be a great campaign promise to stir up the MAGA base.
All of these factors provide a significant downside to prosecution.
However, there is another more compelling reason why Garland may not prosecute Trump: He is clearly concerned about the precedent set by prosecuting a former president.
In an era when partisanship trumps citizenship and political parties do what is best for their self-interest rather than the country’s best interest, such precedent would invite retaliation against future presidents in general and against President Joe Biden in particular.
According to legal commentators who reviewed his tenure as a judge, Garland typically defined the issues narrowly, adhered closely to precedent, and frequently resolved cases on procedural, rather than substantive, grounds.
Thus, if Garland’s judicial tenure is any indication of his modus operandi, he will rely heavily on precedent. There is no precedent for charging a former president with a crime, but considerable precedent exists for not doing so.
On the other hand, the Jan. 6 hearings have clearly increased the political pressure being placed on the DOJ to pursue a case against Trump.
From what is known at the time this column was written, Garland is unlikely to do anything until after the midterm elections.
Another dimension to this issue is, what happens if the Republicans gain control of at least one house of Congress in the midterms?
If one is completely absorbed in political Machiavellianism and considers politics to be amoral, then any means, however unscrupulous, can justifiably be used in wielding political power.
If one is so absorbed, he/she can imagine a deal in which the Republicans agree to not pursue investigations of Biden in exchange for the DOJ not prosecuting Trump.
I realize this is farfetched, but in today’s world who knows what would happen?
Although much of America believes Garland should prosecute Trump, perhaps a more likely scenario is that Georgia attempts to prosecute Trump for election law violations, while the DOJ goes after others in Trump’s orbit such as Rudy Giuliani, John Eastman and others.
That is what happened after Watergate to Haldeman, Erhlichman, et al, so the Watergate precedent presumably would be there for Garland to follow.
Regardless of what Garland does, a large segment of American society will be upset with his actions — or inactions.
Jim de Bree is a Valencia resident.
