Why 'hyper-prudential institutionalist' Merrick Garland has no choice but to indict Trump: journalist

11 October 2022

Many political reporters, after years of extensively covering former President Donald Trump, are extremely skeptical about the possibility of the U.S. Department of Justice’s investigations leading to any type of indictment — whether it involves the January 6, 2021 insurrection or government documents being stored at Mar-a-Lago. Motivating that skepticism is an almost fatalistic belief that Trump is bound to keep dodging accountability.

But journalist Franklin Foer, in an article/essay published by The Atlantic on October 10, argues that because U.S. Attorney General Merrick Garland is such an “institutionalist,” a federal indictment is now unavoidable.

“As the nation’s chief law-enforcement officer, (Garland) is a hyper-prudential institutionalist who would like nothing more than to restore — quietly and deliberately — the Justice Department’s reputation for probity, process, and apolitical dispassion,” Foer writes. “Which is why it is so difficult for me to imagine him delighting in the choice he now faces: whether to become the first attorney general in American history to indict a former president. But this is what I believe he is preparing himself to do.”

Foer, who has interviewed Garland, stresses that the U.S. attorney general “did not tell me he was going to indict Donald Trump” — and that Garland is no doubt struggling with the decision.

“To bring criminal charges against a former president from an opposing political party would be the ultimate test of a system that aspires to impartiality, and Garland, by disposition, is repelled by drama, and doesn’t believe the Department should be subjected to unnecessary stress tests,” Foer writes. “This unprecedented act would inevitably be used to justify a cycle of reprisals, and risks turning the Justice Department into an instrument of never-ending political warfare. And an indictment, of course, would merely be the first step — a prelude to a trial unlike any this country has ever seen.”

The “spectacle” of a Trump trial, Foer notes, is one that “fills Merrick Garland with dread, his friends say.”

“United States v. Donald Trump would be about more than punishing crimes — whether inciting an insurrection, scheming to undermine an election, or absconding with classified documents,” Foer argues. “An indictment would be a signal to Trump, as well as to would-be imitators, that no one is above the law. This is the principle that has animated Garland’s career, which began as the Justice Department was attempting to reassert its independence, and legitimacy, after the ugly meddling of the Nixon years. If Garland has, at times, seemed daunted by the historic nature of the moment, that is at least in part because he appreciates how closely his next move will be studied, and the role it will play in heading off — or not — the next catastrophe.”

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