'Methodical' Merrick Garland 'fears no person' — and he's coming for Trump: legal scholar

'Methodical' Merrick Garland 'fears no person' — and he's coming for Trump: legal scholar
Attorney General Merrick Garland

Like other forms of fascism, authoritarianism and reactionary politics, Donald Trump's so-called movement is a symptom of deeper problems in society, not the cause. Trumpism is not a boil that can be lanced, thereby ending the infection. It's more like a tumor growing from the bones.

It's not exactly true that the Republican Party was conquered or "taken over" by the Trump movement, as many observers still perceive it. The seeds of Trumpism were planted in Republican soil decades ago, and found it a hospitable environment. It's more accurate to perceive Trumpism as the next evolutionary (or, more properly, devolutionary) stage of the Republican Party and the overall conservative movement. It's where right-wing politics were going in America, whether leading conservatives understood that or not.

To discuss the current state of the Trump movement and America's efforts to defeat it, I recently reached out to Norman Eisen, a senior fellow in governance at the Brookings Institution. He served as special counsel to the House Judiciary Committee during Donald Trump's first impeachment, and is the author of the new book "Overcoming Trumpery: How to Restore Ethics, the Rule of Law, and Democracy."

In this conversation, Eisen describes the power of "Trumpery," as he calls it — a combination of disdain for ethical restrictions, assault on the rule of law, incessant falsehood and disinformation, the shameless pursuit of personal and political interest, not the public interest, the exploitation and exacerbation of political division, and attacks on democracy itself. He also discusses why the Republican Party so enthusiastically mated with Trumpism in its quest for autocratic and near-dictatorial power and control over American government and society.

Eisen also discusses why so many members of America's mainstream news media remain in denial about the danger posed by Trump and his Republican-fascist movement and remain locked into to obsolete patterns of "both-sides-ism," "balance" and "neutrality" that are entirely inadequate to the country's worsening democracy crisis.

Toward the end of this conversation, Eisen counsels patience with Attorney General Merrick Garland and the Justice Department, suggesting and that the upcoming House committee hearings on the events of Jan. 6, 2021, will be crucial in holding Donald Trump and his cabal accountable for their obvious or likely crimes against democracy.

This conversation has been edited for length and clarity.

How are you feeling now, given America's democracy crisis and all the other challenges we face as a country and people?

Everybody has their own way of medicating their anxieties about our country's democracy. One of my forms of self-medication is to write books. "Overcoming Trumpery" is my fourth book, and this one was really born out of the alarm that I felt when I realized that Donald Trump may be out of the White House, but Trumpery was still with us. Moreover, Trumpery might even be more dangerous now than when Trump was in office. Trumpery is running amok in the GOP. It has really conquered one of our major political parties.

Why is it so challenging for many people to accept — especially the mainstream news media and other Beltway types — that the problem is much bigger than Donald Trump? That the real problem is not just Trump personally, but what he represents and what he has unleashed?

Yes, the problem is not the man himself, but rather the ideology and the approach to governance that he represents. Trumpery is an American-flavored form of the autocracy that we see from Vladimir Putin in Russia, Recep Tayyip Erdoğan in Turkey and Viktor Orbán in Hungary. That's all it is. The ideology is more dangerous than the man himself. The idea we are discussing is a hard sell for many, even though it is self-evident.

One of the traits of Trumpery is the attack on democracy. The press, to their credit, said, "These phony electors who were sent to Congress are not real." They called them They didn't treat Trump and John Eastman's cockamamie ideas about Congress throwing out Electoral College votes as being genuine. They said these are baseless ideas. The press also did not say that there was any substantial question as to whether Trump won the election or Biden did. They said that Trump lost and that he is lying about it. That is true objectivity. They did not hide behind some notion of "press neutrality." But now that Trump is no longer president they have fallen back to that habit.

Has there been some decision made in the media, like a kind of editorial consensus not to highlight the danger? What is going on here with the media's framing and agenda-setting?

I give the press credit. In a pre-Trump America, there were norms that applied in our government and politics. Trump transgressed those norms. The problem is, when you have a norm- and law-defying person like Trump you cannot continue to apply the old norms of journalism, such as neutrality.

That norm deems that if you're going to provide one side of the story then you have to provide the other side of the story. If something happens, you need to report it neutrally. Editorializing is for the editorial page. The inferences, the interpretation, that doesn't go in the news. But if you have a norm-transgressing figure like Donald Trump, then those journalistic norms have to adapt to that circumstance. We can't be static. That is why journalism in this country is stuck.

And thinking about the law, that is why the prosecutors are stuck. Why on earth has nobody prosecuted Trump? Because we have a norm that there is a very steep burden to prosecute an ex-president. We don't want to be like those countries where the winner prosecutes the loser in an election.

I do think that both are going to come unstuck, certainly on the prosecutors' side. The best way to overcome Trumpery is through prosecution. It sends a message to everyone that there are consequences for this kind of norm- and law-busting behavior that Trump and his alleged co-conspirators engaged in.

Why isn't Donald Trump in prison? Why haven't Trump's inner circle and the other coup plotters been prosecuted?

The Jan. 6 hearings in the House are going to be very important. The DOJ typically starts at the bottom and works their way up the food chain. They've done that with the hundreds of insurrectionists that they've charged. We know they're asking them about the involvement of the White House and other members of the inner circle. There are other signs that are pointing, at the very least, to a DOJ investigation.

Is Merrick Garland afraid to prosecute Trump and other members of his inner circle because of "norms" and "precedent" about holding a former president accountable? What do you think the legal and political calculus is?

Garland fears no person. I've known him for years and he is a great American jurist and lawyer. He has said that he's going to follow the evidence where it leads and apply the law without fear or favor. He's going to let the chips fall where they may. I believe him. He's very methodical. He's very deliberate.

There's some element of not bumping into the Jan. 6 committee's work. There are strong norms at work here: You don't stampede into prosecuting a president.

Garland also needed to restore another kind of norm — and that was the norm of a properly functioning Department of Justice. He's only a year and a half into his tenure, if even that long. He needed to get things settled down in the DOJ before he made such a momentous move. I have a lot of confidence in Merrick Garland's decision-making.

They are running out of time. What about the Jan. 6 committee's decision not to televise its work? I am of the opinion that most if not all of the hearings should have been on television to keep this in the public's consciousness for all these months.

They were gathering the evidence. The hearings are going to take place in June. Based on the evidence we've seen so far, those hearings are going to be very dynamic. Undoubtedly, even with all the leaks, we've just seen the tip of the iceberg. I believe they have time to do their Watergate-style hearings. A month is a lot more time now than it was in the 1970s. You can get a lot more done in a month now. People get bombarded with more information on their iPhones and via social media in an hour than you used to get in an entire day. The committee has ample time left. They wanted to be thorough and now we're going to see the results. I think they're going to be strong.

As you were watching the events unfold on Jan. 6, what were you thinking?

I was in a TV studio just a few blocks from the insurrection. I watched the video feed on multiple screens as the insurrection unfolded. As a student of the American political process, I felt horror at the fact that for first time since 1860 we had a disruption of the peaceful transfer of power in this country.

I felt that the warnings that I and others had made about the dangers of Trumpery had come to pass. I was sad to be proven right. I had said that this could lead to violence and that Donald Trump was playing with fire. I was not surprised that he was silent for 187 minutes. I feel quite certain that Trump was rooting for the insurrectionists, and we now have evidence to that point. I felt a mix of emotions. I was uncertain about the future.

When Republicans initially spoke out about Jan. 6, I was encouraged that this would be the end of Trumpery and the ongoing risk to our country. But that turned out to be wrong. Trump reasserted his grip and power. Above all, I would say that the insurrection is continuing. The Republicans, motivated by the Big Lie and the attempted coup, have now just moved it into the states.

What the Republicans attempted to do in the aftermath of the 2020 election was to attack the rules and the referees, meaning the election officials, as a way of attacking the results. They failed, but they're still doing it. There are hundreds of bills to attack the rules so that they can change the results next time. The Republicans are doing this from coast to coast. The attempted coup has not ended.

What is so compelling about "Trumpery" for the Republicans? For Trump's followers?

They want power at all costs. We need to deal with that. We cannot allow this slow rolling preparation for another coup to go unchecked. The coalition of Democrats, Republicans and independents that defeated Trump and the Republicans in 2020 need to step up and do the same thing in 2022.

What is "democracy"? What is the "rule of law"? These concepts are summoned all of the time in conversations about the Age of Trump and this crisis, but they are rarely defined or explained. These definitions are critical.

The legitimacy of our constitutional republic is founded in the choices of the American people. In the United States, it's sometimes said that "the voters choose their leaders." In an autocracy, the leaders make that choice. That is the core difference between American democracy and the kind of American autocracy that Donald Trump is pushing.

Trump's behavior was anti-democratic because he wanted to substitute his own decision to stay in power for the choice that the voters made. The moral legitimacy of our democracy and government stems from the choice of the people. It's really as simple as that. Trump wanted to substitute his own choice for that of the American people and the Constitution.

As for the rule of law, there is a system of rules that we've agreed on, and the rules apply equally to all. Again, no person is above the law. Trump wanted to put himself above those rules. The rules should be the same for everyone. He wanted a special new set of rules for himself. So, that's what the rule of law means. Trump transgressed it thousands of times, but the last one, on Jan. 6, 2021, was the worst.

Did Trumpery impose itself on the Republican Party, or was the party already afflicted with the sickness before Donald Trump? In essence, those values and beliefs were already there.

The seeds were certainly there for a very long time. When Sen. Mitch McConnell was asked at the beginning of the Obama administration, in which I served, "What's your objective?" he said, "To deny Barack Obama a second term." That's a form of Trumpery. He's putting his narrow partisan political interests above the interests of the country.

Every single one of the deadly sins of Trumpery was germinating in the Republican Party before Donald Trump. For example, the disdain for ethics, attacking the rule of law, lies and disinformation. The sheer shamelessness. Pursuing personal political interest and not the public interest. Driving divisions and attacking democracy. The nativism, the populism, the attacks on minorities. We've seen so much of this with the Republicans even before Trump. We've seen so much that's wrong, but it was a minority position that was germinating. It took Trump to really lead Trumpery to dominance in the Republican Party. The Republican Party is now a wholly owned subsidiary of Mar-a-Lago. That's a disaster with one of our two major parties.

What can we do to purge or inoculate America's democratic culture from Trumpery?

We have to empower the people who are pro-democracy to get out there and fight for our democracy, as we did in 2020. The tools are there. We need to have the will. We need to join together. We need to set party aside; democracy should not be a partisan issue. It worked in 2020. I think it can work again in 2022 and beyond.

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