What was it that attorney Jeffrey Clark was going to give to Trump in exchange for being slotted in as the new attorney general? He was going to announce that the Department of Justice was opening an investigation into election fraud in Georgia. Clark wasn’t promising convictions, or even indictments. Just the announcement that an investigation is being opened has enormous weight—weight that Trump intended to use as leverage on Jan. 6.
With 93 U.S. attorneys and an unguessable number of functionaries at the Department of Justice and the FBI who are capable of opening an investigation, it may have only been policies like this one that kept Trump from finding someone who was willing to pop up on national TV and declare that Justice was preparing a fistful of indictments right on the eve of the election. And stopped them from popping up after the election to support Trump’s Big Lie.
That’s not to say that Barr had that in mind when he authored the February 2020 memo. He was almost certainly just working to make sure that Trump’s lanes remained clear of any Department of Justice-flavored issues moving into the fall. Considering Trump’s many, many legal issues, of which Barr was all too aware, the primary purpose of Barr’s memo was simply to make sure no well-intentioned operative within the department announced an investigation into anything vaguely related to Trump before Barr got to bring his considerable weight down and quash it.
Barr certainly had in mind a particular moment in 2016, when sanctimonious asshat James Comey took it on himself to announce that the FBI was reopening an investigation into (say it with me) Hillary Clinton’s email just days before the election—an announcement that, all by itself, likely generated enough of a change to saddle the nation with four years of Donald Trump.
What Barr didn’t want going into the 2020 election was any unexpected wildcards coming from inside his own department.
As frustrating as it may seem for Garland to be repeating any policy of Barr, this isn’t even a new policy. Barr’s 2020 version of the memo laid a specific onus on avoiding candidates for the office of president, but otherwise simply repeated what was supposed to be longstanding department policy. Garland seems to be simply reminding people again of that policy—and pointing out where they can look it up in the manual of justice if they have issues.
There is nothing in the memo to even suggest that there will not be indictments related to Jan. 6. There’s nothing in the memo to suggest that there won’t be an indictment against Trump.
It may be possible to argue that since some of those involved in the Jan. 6 conspiracy are candidates for office in 2022, then if an investigation were opened into them it would take asking Garland or the deputy attorney general. But that’s the most that might be milked out of it. And even that’s a stretch.
Here’s the core statement from the memo.
Simply put, partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose, or the appearance of such a purpose, is inconsistent with the Department’s mission and with the Principles of Federal Prosecution.
Honestly, it is very difficult to read this memo as anything other than a good thing. It’s not “Garland protecting Trump just like Barr.” It’s not even Garland saying that the Department of Justice has to put justice on hold for the next year while everyone gets bombarded by campaign ads. It’s just a statement that the Department of Justice should not be used “for the purpose of giving an advantage or disadvantage to any candidate or political party.” That’s not something anyone should want to see ended.
Applying this memo to the Jan. 6 investigation at all takes several logical leaps. Saying that it somehow protects Trump or his associates from indictment … that’s just wrong.
Pundits are certainly right to complain that Merrick Garland has dragged his feet, moved with the speed of a sickly snail, and generally shown every sign of being reluctant to deal with the most consequential legal event in the United States in the last century and a half. I share that frustration.
But this isn’t part of it.