The Washington Post (with The New York Times lord protectors of whoever is in power) chastises Garland critics — “armchair quarterbacks” — not enamored of what appears to be a less than robust approach to the January 6 prosecutions. “The volume on these complaints is cranked way up — and it needs to stop.” Well, then.
The Post wants critics to “let Garland do his job”. It argues that (i) “they want to see quick prosecutions that align with their beliefs or fit their timetables;” (ii) they don’t know what Garland is up to behind the scenes; (iii) “massive investigations” take time; (iv) there are “complex legal issues;” and (v) “what’s the rush”?
What is the motive to this exercise in abstraction? It’s true that “hundreds of those who rioted at the Capitol are currently being prosecuted — an enormous undertaking. Some have pleaded guilty and agreed to cooperate”. Also true is that DOJ correctly distinguishes between those who committed violence and those who didn’t.
Surely, though, the Post is informed about the curious decisions by Garland prosecutors when it comes to sentencing for the non-violent cases. The insistence on little or, more common, no jail time has even drawn criticism from judges. This is no accident. Garland has openly expressed the odd sensitivity of not wanting to radicalize the defendants further.
What drives criticism of Garland is his compulsion to be seen as apolitical rather than to apply facts to law. He seems unaware that his energetic non-pursuit of incarceration for acts he deems “the most dangerous threat to our democracy” is very much the product of his political calculation: If I push too hard, they’ll accuse me of being political.
Unhelpful, too, is the Post’s old chestnut, false equivalence. An argument for expeditious prosecution of January 6 crimes based on evidence to hand — not the critics’ “beliefs,” as the Post distorts it — is hardly analogous to Barr’s not prosecuting cases in order to help his president obstruct justice. One is the DOJ’s mission, the other is plainly not.
Nor does the prosecution of crimes committed by political figures make that prosecution political, say nothing of persecution. Were it otherwise, politicians would be immune from criminal liability. While the Post is free to advocate that theory, there is no Constitutional or statutory support for it, not to mention that it contradicts this country’s jurisprudence.
The Post also claims that, “When it comes to Bannon, the complaints about delay are frankly ridiculous”. Ever conscious of protecting people in power, it scolds that “you don’t rush out and indict a former White House official without taking a little time to get all your ducks in a row”. It demands ducks-a-rowing “even when the evidence appears strong”.
For starters, the Post misleadingly conflates the issues of evidence related to crimes being investigated and defiance of a subpoena in furtherance of that investigation. Bannon is a witness, not a suspect. His choice is to comply with the subpoena or move to quash it. Telling Congress to be fruitful and multiply is not a lawful choice.
Besides, what ducks are missing? Bannon was served a subpoena. He chose to defy it. (Congress, for reasons unclear, went the statutory route rather than with its own inherent authority to enforce the subpoena, which would have authorized the Sergeant-at-Arms to take Bannon into custody and bring him before Congress.)
Why does the Post think it “way too soon” to criticize Garland’s failure to indict Bannon for defying the subpoena? This is not a complex case. Even if the new US attorney overseeing it “has been in office only a few days,” he has prosecutors competent enough to draft a single-count indictment for contempt of Congress. There is no better time than now to prosecute.
Yet the Post whines: “[W]hat’s the rush? The potential defendants aren’t going anywhere.” This is Exhibit 1 of a national newspaper’s hedging its political (access) bets. It is inconceivable that the Post is ignorant of the political implications arising out of the obstruction of the investigation and prosecution of crimes committed on January 6.
History suggests that the 2022 mid-terms will flip the House, in which case the matter (but, obviously, not the right-wing mythology about it) will end. Rather than press Garland to get a move on, the Post chooses to denigrate those who do. A strange position for a publication that saw January 6 as “shaking the underpinnings of American democracy”.
Lastly, is the restoration of public confidence in DOJ really the primary mission for Garland, as the Post contends? Assuming it is, this smacks of cart-before-horse. If January 6 is as serious a matter as the Post itself has often said, it is overtly robust investigation and prosecution which will restore that confidence. Anything less just leaches more toxins into the foundation.
