Editorial: Merrick Garland Must Prosecute Criminal Former Trump Admin Officials to Save Democracy

The only way to stop the next Trump administration is to prosecute the last one.

Democracy is hanging on by a thin thread as we battle the authoritarian death-cult impulses of the current Republican Party. The situation is dire, and requires warriors for justice rather than traditional institutionalists. Attorney General Merrick Garland is repeatedly stepping in to defend Trump from non-work related activities (like defaming an alleged sexual assault victim of his) and now his DOJ is declining to prosecute Trump administration member Wilbur Ross for lying to Congress.

What do our laws mean if they don’t apply to certain people? How is this restoring faith in the U.S. “judicial” system?

The Department of Commerce Inspector General’s report confirmed Congressional Democrats‘ findings from their investigation that former Commerce Secretary Wilbur Ross misled Congress with false testimony regarding the origins and purpose of the Trump administration’s proposed citizenship question on the 2020 census.

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Rep. Carolyn Maloney, Chairwoman of the Committee on Oversight and Reform, issued the following statement on Monday, “The independent Inspector General has confirmed what the Oversight Committee found in our extensive investigation: that Secretary Ross misled Congress and the American people about the true motivations behind the Trump Administration’s illegal efforts to add a citizenship question to the census. Lying to Congress is unacceptable, and the IG did the right thing by referring Secretary Ross’s conduct to the Justice Department.

“It is appalling that the Trump Administration subjected an undertaking as important as the decennial census to brazen political manipulation. The previous Administration’s efforts to skew the census for political gain put millions of Americans at risk of losing federal resources and representation, and I am proud of the fight we won on behalf of all Americans to fend off this partisan attack.

“Going forward, I’ll be continuing the Committee’s investigation to determine the full scope of the Trump Administration’s political interference with the census and identify ways to enhance the independence of the Census Bureau and protect future censuses from manipulation.”

Yet, the Biden DOJ will not prosecute Trump officials after the Inspector General confirmed that former Commerce Secretary Wilbur Ross misled Congress.

“The IG said it presented its findings to Justice’s Public Integrity Section of the department’s Criminal Division, but the department declined to pursue prosecution. Under the Trump administration, Justice similarly declined to prosecute Ross and others after Democrats voted to hold them in contempt for refusing to turn over documents related to citizenship question decision making.

Justice did not respond to an inquiry into why it declined prosecution.”

Declined prosecution. This is a phrase rarely seen in the case of poor Americans, Black Americans, people of color — it is a phrase used in cases where the word “traditional” plays an uncomfortable role.

Law Professor at the Western New England University School of Law and author of the new book BIG DIRTY MONEY Jennifer Taub observed, “The Garland DOJ will follow the tradition of allowing the white, wealthy and well-connected to crime without consequence with the rationale that if it looks the other way for elite felons regardless of political party, it’s all good. That’s not justice”.

Is there justification for “declining to prosecute” Ross? Perhaps. But we are not privy to it, if so. And the real question here is if the law doesn’t apply to former administrations because everyone is so afraid that they will be engaging in what the Trump administration actually did, the best course of action would seem to be to demonstrate the criminality of the Trump administration’s actions rather than to hope the next president won’t do what this one got away with.

So far, hoping that bad guys will just get the message that they were bad and choose to be better isn’t working out so well. Ignoring blatant attacks on democracy is not a course of action that inhibits future behavior; it is, sadly, an invitation to do more of the same.

It’s suggested widely that Garland has to step carefully lest he make Trump into a martyr for 2024. But Trump will play the martyr without any help. He makes things up as deftly as Democrats balk at taking the reins. There is no deal with the devil to be made here. The only deal that will save us is to uphold the law as vigorously with elite, wealthy white men as we do with everyone else.

None of this is to suggest that Garland’s DOJ should be operating in any way other than as upholders of the law. This isn’t about partisan politics; it’s about the law. And the fundamental question: If some people are above the law, do we really have a democracy.

After all, what incentive is there for any administration to follow a law that won’t be applied to them. Trump showed us the impotency of hoping decency and ethics prevail. We cannot afford to rely upon the media and voters choosing individual character over money bait like the Trump show.

AG Garland is thus far not showing promising signs of being up to the task at hand of cleaning up after an authoritarian regime.  Saving democracy at this point in time requires a person of Garland’s integrity (and that is not in question), but also a person of moral grit – someone, perhaps, who has been on the other side of privilege and understands that one cannot actually right the ship by embracing the powers that be.

There’s still time for Garland to rise to the occasion, but democracy is only as good as the perception of its legitimacy. An entire administration of lawless attacks upon democracy and vulnerable citizens being excused from justice to preserve some bubble-induced sense of restoring tradition won’t cut it.

July 20th update: The AP and Government Executive both issued a correction to their stories about Merrick Garland, turns out it was none other than Trump’s AG Bill Barr who “declined” to prosecute Wilbur Ross. Aplogies to Merrick Garland and more discussion on this here.