We Are All Paying the Price for Merrick Garland’s Abject Failure

It’s hard to say who is the worst attorney general in American history. The candidates are many and comprise a veritable rogue’s gallery of sadists, reactionaries, and incompetents. They range from A. Mitchell Palmer, mastermind of the original Red Scare that decimated the left in the wake of the First World War, to Jefferson Beauregard Sessions III and William Pelham Barr, who sacrificed the rule of law in service to Donald Trump.

Merrick Garland may not share the malignancies of his fellow train wrecks, but he deserves to be in the discussion. Decades from now, historians will memorialize Garland not as a dedicated public servant and fair-minded federal judge whose nomination to the Supreme Court was torpedoed by Mitch McConnell and Senate Republicans, but as the head of the Justice Department who brought a butter knife to an existential gunfight with Trump, quickening our collective descent into neo-fascism.

After his appointment to helm the DOJ, Garland had one overarching mission: to swiftly convene a grand jury to investigate Trump for his role in inciting the Jan. 6, 2021, insurrection at the Capitol. This was a task a third-year law student could easily have accomplished. Garland failed, abjectly.

Garland will forever bear the principal stain of wimping out when courage and—to put it in the vernacular—balls were needed to stop Trump.

Probable cause for an early indictment was abundant and obvious. On January 6, millions of Americans watched Trump stand on the Ellipse at the south end of the White House and urge his supporters to march on the Capitol and “fight like hell.” Millions watched the actual assault that followed, blow by medieval blow. Even the corrupt McConnell, who voted to acquit Trump in his second impeachment trial in February 2021, declared on the Senate floor, “There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day [January 6].”

Instead of targeting Trump and his chief lieutenants immediately, Garland set out to arrest and try the foot soldiers of the uprising. And while he did a commendable job in that respect (eventually charging more than 1,500 with federal crimes), he dithered on Trump until November 2022, when he appointed Jack Smith as a special counsel to probe Trump for the insurrection and absconding from the White House with a trove of highly classified documents.

By then, it was too late.

Although Smith secured an indictment of Trump in Washington, D.C., for conspiracy, obstruction, and election subversion on August 1, 2023, the indictment was gutted by the Supreme Court (Trump v. United States) the following July in a decision that granted Trump sweeping and unprecedented immunity from criminal prosecution.

Written by Chief Justice John Roberts, a lifelong conservative activist with an undeserved reputation as a judicial institutionalist, the ruling is arguably the worst edict handed down by the high court since the Dred Scott case of 1857. “Trump v. United States is distinct as a deliberate attack on the core institutions and principles of the republic, preparing the way for a MAGA authoritarian regime much as Dred Scott tried to do for the slavocracy,” wrote Sean Wilenz in a scathing article for The New York Review of Books.

Smith also indicted Trump in Florida in the documents case, but that prosecution was subsequently scuttled by District Court Judge Aileen Mercedes Cannon, an inexperienced MAGA sycophant whom Trump installed on the federal bench in the runup to the 2020 election.

In addition to Garland, the Supreme Court, and Cannon, former President Joe Biden also shares responsibility for letting Trump off the hook. From Day 1, Biden should have used the bully pulpit to attack, isolate, and destroy Trump and his MAGA base. Instead, he pursued a politics of accommodation, preaching a return to the false neoliberal normalcy of bipartisanship. Most critically of all, Biden decided to seek a second term, when it was apparent to everyone with two eyes and ears that he was no longer fit, either physically or mentally, for another stint behind the Resolute Desk. With Biden’s approval rating plunging to 40%, former Vice President Kamala Harris had little to no chance of defeating Trump at the polls.

But standing atop the heap, Garland will forever bear the principal stain of wimping out when courage and—to put it in the vernacular—balls were needed to stop Trump before the forces of reaction had time to regroup and reorganize. They are now in control.