Analysis blames Garland for SCOTUS immunity ruling: 'Took a big risk'

The U.S. Supreme Court's 6-3 immunity ruling in Trump v. the United States has drawn vehement scorn across the political spectrum, with everyone from progressive Rep. Alexandria Ocasio-Cortez (D-New York) to veteran conservative columnist and former Nancy Reagan speechwriter Mona Charen slamming it as a recipe for corruption and authoritarianism.

The High Court's six GOP-appointed justices ruled that presidents enjoy immunity from criminal prosecution for "official" acts but not for "unofficial" acts. Progressive legal expert Elie Mystal has been emphasizing that the decision is dangerous because it grants presidents "absolute immunity" rather than "qualified immunity"—an enormous difference, according to Mystal.

The Washington Post's Jason Willick is somewhat critical of the ruling in his July 3 column, saying he has "mixed feelings." But his main target is U.S. Attorney General Merrick Garland, and he argues that Garland's actions paved the way for the decision.

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"As atrocious as Trump's behavior was after losing the 2020 election," Willick writes, "indicting him for it was a choice — a judgment call — not an obvious necessity…. Had Trump been charged under a well-defined statute for what former Attorney General William P. Barr has called a 'meat-and-potatoes crime,' the Supreme Court might have been more likely to let the case go to trial without a ruling on presidential immunity — or to tailor immunity more narrowly."

The Post columnist continues, "But because Trump's terrible post-election behavior consisted mostly of broadcasting political lies, there was no such crime available. The Justice Department fell back on broad and inchoate charges. If Garland's prosecutors were determined to bring a case based on untested laws against a former president, they could have at least drawn up a clear, narrow indictment — perhaps limited to the fake elector slates Trump's campaign submitted to Congress. But Garland's prosecutors threw everything into the indictment they could, even alleging that Trump's threat to remove an acting attorney general was criminal."

Willick argues that the Trump v. the United States ruling might have been avoided if Garland had handled things differently.

"Those who hate the Supreme Court's ruling will crusade against justices, and perhaps get some political mileage out of it," Willick says. "But a savvy attorney general tries to advance his objectives within existing institutions. Garland took a big risk not only by bringing this case but also by letting his prosecutors present and argue it the way they did. Trump v. United States is his legacy, too.

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