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An Open Letter to Merrick Garland

By Jessie Seigel / Washington, D.C.


The Attorney General Making His Announcement on Friday
The Attorney General making his announcement on Friday

November 21, 2022


To: Attorney General Merrick Garland, U.S. Dept. of Justice


From: Jessica Seigel, Citizen


You have a lot of ’splaining to do, sir!

You have repeatedly promised that DOJ “will follow the facts wherever they lead” and that “no person is above the law in this country.” Nice words. But your actions suggest otherwise.

I refer to your announcement last Friday that you are appointing a special counsel to take over DOJ’s investigations into the interference with the transfer of power after the 2020 presidential election, as well as the ongoing investigation involving classified documents and other presidential records, and the possible obstruction of that investigation, described in court filings in the Southern District of Florida.

The handing off of your responsibility for these matters to a special counsel at this juncture is, at best, myopic; at worst, a cowardly abdication.

For almost two years, constitutional lawyers, scholars, and legal commentators have questioned the silence of the Department of Justice, wondered whether it intended to investigate more than the foot soldiers of the Jan. 6 attack, puzzled over why DOJ seemed only to be following leads initiated by the House Jan. 6 committee, and expressed the hope that—despite outward appearances—DOJ was nevertheless investigating those people at the top who organized the January 6 insurrection.

When the F.B.I. finally served its warrant at Mar-a-Lago to retrieve the classified and other documents which former President Trump had absconded with, it was thought that now—finally—DOJ, under your leadership, was taking some independent action.

And then you announced this appointment.

As The Nation’s justice correspondent, Elie Mystal, pointed out on MSNBC, if you were going to appoint a special counsel, you could have done it 18 months ago. Your stated reason for doing so now—that Donald Trump has announced he is running for president in 2024 and that President Biden likely will do so—is a thin, specious excuse for passing the buck.

As Mystal said, “This idea that Trump was going to be a candidate for office is not a new development in the case.” And the notion that Trumpists are suddenly going to accept this investigation of Donald Trump as legitimate and not partisan just because a special counsel conducts it is laughable.

Furthermore, the DOJ had no qualms about investigating –or should I say reinvestigating—then presidential candidate Hillary Clinton only a few weeks before a presidential election. But when Trump merely declares his candidacy—two years before an election—that requires your investigation to be handed off to a special counsel? With the delay such action will likely entail even if the new special counsel does not start again from scratch?

Trump’s declaration of his candidacy should not in any way have changed his status as merely another citizen of the United States. But if this appointment is your idea of “no person being above the law,” maybe I should rob a bank and immediately declare my candidacy for president.

Following the facts and the law wherever they lead without regard to what people will say about you and the DOJ would have demonstrated true integrity. Instead, by trying to maintain an image of being purer than Caesar’s wife, you may well be aiding those who are working to destroy the rule of law and end American democracy.

While presumably your goal in appointing a special counsel was to take politics out of the equation, the appointment was itself a political decision—one which favors Donald Trump by slowing down the investigative process, perhaps even allowing him to capture the White House in 2024 and quash the investigation altogether.

Former Acting U.S. Solicitor General and current Georgetown law professor Neal Katyal told PBS that the current special counsel regulations—which Katyal himself drafted—are not meant for this situation where an investigation is underway, but to prevent a government cover-up where an attorney general might not be willing to investigate the president who had appointed him. As Katyal also said on MSNBC, you can’t avoid acting politically because if Smith says he wants to indict, you will still have to sign off on it.

In addition, former Special Assistant Watergate Prosecutor Jill Wine-Banks told MSNBC that initially she was very angry about the appointment. She continues to maintain that there is no conflict requiring a special counsel. But, after reflection, she concedes that if the new special counsel keeps the current staff—who seem ready for trial, with “really experienced trial lawyers”—it won’t delay a possible indictment.

On the other hand, Harvard Law professor emeritus Laurence Tribe, who at one point felt it was too late to appoint a special counsel, tweeted on November 19, “Now that I see the details, I think Garland has done exactly the right thing and that Smith is exactly the right prosecutor to take it on. Full speed ahead!”

In later tweets, Tribe added: “Smith didn’t leave his job as a war crimes prosecutor in The Hague to preside over a non-case.” Tribe also argued that if Bill Barr’s Special Counsel John Durham couldn’t be removed by Merrick Garland, Garland’s Special Counsel “won’t be removable by a GOP president’s AG unless the regs are repealed.” Of course, if Trump regains power, with a GOP congress, those regulations will be repealed lickity split.

These commentators seem to be attempting to find a bright side to your decision.

I will acknowledge that Jack Smith, the man you have appointed, appears to have solid credentials, and a reputation for integrity. Admittedly, the fact Smith served as the head of the DOJ’s public integrity unit, prosecuting election crimes, and his stint at The Hague, investigating and prosecuting war crimes, is impressive.

But when you were nominated in 2021, you had solid credentials and a reputation for integrity, as did Robert Mueller, who wrote a report on the investigation into Russian interference in the 2016 presidential election, but ultimately refused to take a stand—to state a conclusion or make a recommendation. Instead, Mueller threw his responsibility into the lap of Congress and to the mercy of then Trump Attorney General, William Barr.

I have no option but to hope that Jack Smith has more steel in his spine than either you or Robert Mueller. But on the future of the investigation under Smith, I’m from Missouri: Show me.

 

Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.


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