DOJ Ball

​A few related thoughts came to mind while watching the news last night.

1.  Anyone who is not in Attorney General Merrick Garland’s circle and tells you that they know what the Department of Justice is doing is fooling you and themselves.  That there is no record of anyone in the Trump administration being questioned or subpoenaed does not mean there is not an active investigation.  Maybe there isn’t – maybe there is.  But no one actually, truly knows.  Especially in a Garland department, since he’s known for keeping almost-total secrecy.  After all, no one knew whether or not the DOJ was investigating any terrorist groups and there’s been no known interviews or subpoenas – and then one day there were 11 indictments for seditious conspiracy.

2.  I don’t know whether the DOJ is investigating anything related to Trump and his conspirators.  However, I find it near-impossible to think that it isn’t.  And I suspect most people who are most-concerned that the conspirators won’t be charged also find it near-impossible to think that there would be no investigation – which is specifically why they are the most-concerned.  None of this means there is an investigation, but the fact that it’s near-impossible for (I’m sure) most people, including the most-concerned to think there isn’t at the very least an investigation suggests that it would seem the DOJ is investigating.

3.  Just because the Justice Department is investigating the coup attempt doesn’t mean they will file charges.  The DOJ will only file charges if they believe they have enough evidence of a crime to get a conviction.  Just because I and so many others may think there is enough evidence overflowing out of the evidence box doesn’t mean the people who actually have to try such cases feel the same. 

4.  I am sure the Justice Department is being even more careful about thinking they have the evidence to convict than me, you, others and even they themselves would usually be is because, in part, they know that the defendants would be the former president of the United States and his closest associates.  And convicting such people requires more rock-solid, airtight evidence than usual.  Because most people (myself included) don’t want The President of the United States – whoever that might be throughout history and the future – to be a criminal, found guilty of anything and facing jail.  The standard for that, therefor is incredibly high.  When 12 people are sitting in a jury box, and the defendant is The President of the United States, or his closest staff, I suspect everyone one of the jurors is thinking, “I hope The President is not guilty – if he is, I will vote to convict him – but…that prosecutor better convince me beyond even a reasonable doubt, but beyond any doubt at all.”  And I’m sure that Merrick Garland and most everyone in the Department of Justice has that sense, as well.  Which is why – assuming that they are investigating – that they are being so incredibly careful.  Which is frustrating and concerning to the public.

5.  I know that the Justice Department does not comment on active investigations.  And that’s a good thing.  But as more and more ghastly news stories break each day about a criminal conspiracy to stage a coup and overthrow the government, that does indeed become highly concerning and stressful to the American public.  Yes, indicting a president and his team is a new level of stress, but the stress of “not knowing” is always its own level of hell.  Especially when democracy is at stake.  So, I would dearly wish that even if Merrick Garland feels an understandable obligation to hold to his standard, that he would also understand the national stress (on all sides) caused by long and total silence, and figure out some way to let the public know that some sort of an investigation is going on. 

I’ve read Constitutional expert Laurence Tribe write that the standard to not comment on active investigations is a policy, not an obligation, and that there are conditions when investigations can be reported.  And Merrick Garland is a bright guy – I’m sure he can figure out some way to explain what is going on (assuming something is), even if it’s not in the same way Laurence Tribe suggests.  I know that several weeks back, Mr. Garland did make a speech which sort of, kind of, in a way did hint that there was an active investigation of those at the time.  Which is one reason I feel confident that there is one.  But sort of, kind of hints really aren’t quite enough when it comes to trust and faith in the rule of law and the survival of democracy.

And I should note, too, that when the DOJ operates by a standard that “We don’t comment on active investigations” doesn’t mean that they don’t comment when there isn’t an active investigation.  Generally they don’t, but we’ve all heard denials over time that something is not being investigated or that someone is not a suspect or that someone is only a person of interest.  Which is another reason I suspect there is an investigation, since there hasn’t been a denial that one exists.  In fairness, not confirming the non-existence of something does not “prove” its lack of existence.  (That’s four negatives in a sentence, I hope you managed to find your way through it.)  So, I’m not suggesting that that’s anything meaningful – just that I’m suggesting it’s yet another reason along with the near-impossibility to believe otherwise that there is an investigation.

But boy howdy, do I hope that Merrick Garland can figure out a way to make this clear other than a sort of, kind of hint.

In lieu of that, another way, of course, would be to schedule some interviews.  Or he could be to issue some subpoenas.

Or if all that doesn’t occur, he couldn’t always make some criminal indictments.

In the end, I think people are just going to have to suffer for a while and be very patient.  This is all the more difficult with a mid-term election about 10 months away.  And that adds to the challenge – indictments would certainly have an impact on the election.  That could be a very good thing for Democrats.  But it could also make the Attorney General wary to release anything close to the election.  How close is “close” is another matter.  And one that former FBI Director James Comey did a lousy job answering.

But I suspect that waiting and suffering is going to be the way of the world.

Meantime, I take solace as more and more news stories get reported and the House Select Committee prepares to hold public hearings, all of which might well help set the table for DOJ indictments.

As I always say, I live in reality, but have a vacation home in the Land of Hope.