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When it comes to prosecuting Trump, Merrick Garland needs to decide already

U.S. Attorney General Merrick Garland speaks during an event at the Justice Department in June of 2021. (Photo by Win McNamee/Getty Images)

On Nov. 18, U.S. Attorney General Merrick Garland appointed former Justice Department prosecutor Jack Smith as Special Counsel to oversee two Justice Department criminal investigations of former President Donald Trump: one concerning his role in the Jan. 6, 2021 attack on the Capitol and the other his possession of classified documents after leaving office.

Millions of Americans were delighted with this news, hoping eventually to see Trump in jail.

Millions of other Americans were outraged by what they consider another abuse of power by the Administration of President Joe Biden. They will be pressuring the new Republican leadership in the House to pursue investigations of the administration in response.

I am in neither camp. I view Trump as a unique threat to democracy, quite different from Republican governors such as Ron DeSantis, Greg Abbott and Glenn Youngkin, who are mentioned as potential GOP candidates for president in 2024.

I don’t like their policies, but, unlike Trump, I don’t worry that their election might be the last presidential election in American history.

Despite all that, I have no particular interest in prosecuting Donald Trump. My earnest desire is something quite different—to end Trump’s influence in American national life.

It is true that a criminal prosecution might fully discredit Trump, at least in the eyes of the 80 percent or so of Americans open to hearing about it, if there were clear evidence of serious wrongdoing.

What we know now about these two investigations is not that, however, and prosecution on the facts we know would not remove Trump’s influence.

In terms of Jan. 6, we already know that Trump spread the big lie of election fraud and encouraged a crowd—peaceful at the time—to march to the Capitol and “fight like hell.” That is probably not even a crime.

There is evidence that Trump had been told that some members of the crowd had weapons and planned to commit violent acts at the Capitol. That brings his speech closer to criminal conduct, but is not even the proof-beyond-a-reasonable-doubt needed for conviction.

In terms of the documents, we know that Trump improperly removed and stored highly secret documents and did not closely monitor access to them.

Perhaps these facts would lead to a successful prosecution for something, but it would be the worst of all worlds. Trump would be a martyr in prison and would not have to defend his actions on the campaign trail.

If there is actual evidence that Trump directly and secretly told armed groups to attack the Capitol to disrupt the counting of Biden electors, that evidence has not come to light.

If there is evidence that Trump passed secrets to foreign governments, either for profit or out of enormous neglect, we have not seen it.

If that kind of evidence exists, by all means Trump should be prosecuted. Those are the crimes that would destroy Trump. If there is no such evidence, the investigation should be officially terminated.

Garland may feel the same way.

Yes, the appointment of a special counsel can be a way to insulate the Justice Department from a controversial decision to prosecute. But it can just as easily serve to insulate a decision not to prosecute.

Notably, the final decision on prosecution remains with Garland, not with the special counsel.

What is urgently needed is a decision. Soon. Hopefully, before the end of the year.

Before the announcement, there was a path to oblivion for Trump. Trump essentially lost the midterm elections for Republicans by his selection of unsuitable candidates, by his insistence on faithful regurgitation of his grievances and by his unpopularity with independents.

This loss came on top of Trump’s responsibility for losing the Senate for the Republicans in 2020.

Before Nov. 18, Republicans were waking up to Trump as a liability.

And for the first time, former allies on the political Right were not just criticizing Trump but lampooning him. Rupert Murdoch’s New York Post, for example, reacted to Trump’s Nov. 15 announcement that he is running for President with the small headline, “Florida Man Makes Announcement.”

Before Nov. 18, it was possible to imagine a diminished Donald Trump labeled a loser on the presidential campaign trail and forced to withdraw. This was by no means a certain outcome but it was plausible.

And that outcome would have eliminated Trump as a national force.

But with the appointment of a special counsel, that trajectory stalled.

No Republican can now criticize Trump in any way related to these two criminal investigations and retain realistic hope of gaining the GOP Presidential nomination in 2024. Each potential candidate will be forced to ritually denounce the investigations to remain in the good graces of the Republican base.

They can still run for president, but they cannot now run against Trump. And that is what is needed to remove Trump’s influence permanently from public life.

This political reality is not a criticism of Garland’s decision. There is clearly potential evidence of criminal wrongdoing by Trump and it is the responsibility of the Justice Department to investigate.

But if Trump is to be genuinely diminished, then the investigations must come to an end. Trump’s political opponents need time and space to build presidential organizations and to genuinely take aim at Trump.

So, Garland, fish or cut bait. If there is evidence of serious wrongdoing, then indict Trump and be done with it. If the evidence of crimes is clear and convincing, then even many Republicans will eventually accept it.

But if the evidence points only to ambiguous exhortations on Jan. 6 and what will be regarded as paperwork errors regarding documents, then get out of the way.

A recent New York Times editorial has matters exactly backwards. Trump’s “new campaign” does not pose “even greater dangers to American democracy.” Ironically, Trump’s new campaign is one of two effective ways to get rid of him. And if we can’t get solid evidence of serious crimes, Trump’s new campaign for President is the only way to get rid of him.

So, Garland, decide already.

Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh and is a contributor to the Pennsylvania Capital-Star, which first published this commentary.

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When it comes to prosecuting Trump, Merrick Garland needs to decide already