Note From Elie is part of the free weekly CAFE Brief newsletter.

Sign up free to receive the CAFE Brief in your inbox every Friday: cafe.com/brief

Become a member of CAFE Insider: cafe.com/insider

Dear Reader, 

This is not another piece on the likelihood that Merrick Garland will eventually indict Donald Trump. The arguments are familiar by now, both ways, and whatever will be will be.

Today, we’re asking this: when?

No matter where you might fall on the “will-he-or-won’t-he?” spectrum, we can all agree that the clock matters, and it’s ticking. Every day that passes makes a potential federal prosecution of Trump less likely to happen, and more fraught for the Justice Department if it does. 

It’s now early May – sixteen months since the January 6th attack, and fourteen months since Garland took office. There’s no technical reason DOJ needs to indict anytime soon — the federal crimes in play here typically carry five-year statutes of limitations — but the Department’s pace conveys a lack of urgency that is ill-matched to the gravity of the potential crimes. Put it this way: if Trump did commit a crime relating to the coup attempt, it’s the most serious political crime in our country’s history. Yet the Justice Department is going to wait a year and change (and counting) to do anything about it?

I know, I know: these things take time, and they want their case to be perfect. That’s an easy refrain, but I reject it in these circumstances. During my fourteen years as a prosecutor, I saw law enforcement move with astonishing speed when circumstances demanded it. As attorney general, Garland has the full resources of the Justice Department, including the FBI, at his disposal. If ever a case required urgency, this is it. Yes, as a prosecutor you want your case to be strong and well-supported. But you don’t spend over a year fretting over whether your proof is absolutely flawless, particularly when there’s already ample evidence in plain public view. 

Let’s flip ahead on the calendar. Midterm elections are on November 8th. The Justice Department has a longstanding policy against announcing new criminal charges or taking overt investigative steps (such as executing a search warrant) shortly before an election. There’s no formal provision on the books, but AGs of both parties over the past several administrations have issued Department-wide memos reminding prosecutors to abide by this blackout practice, which applies either 60 days or 90 days before an election, depending who you ask. (I always understood the blackout period to be 60 days, but other DOJ alums place the line of demarcation 90 days out.)  

Knowing Garland’s tendencies, he’ll err on the side of caution. So counting back 90 days from November 8th puts us in early August. That means either (1) we’ll see a federal indictment of Trump by late summer, or (2) we won’t see one until at least the end of 2022, if ever. (The same applies, by the way, to other pending DOJ investigations with obvious political implications: Matt Gaetz, Hunter Biden, Rudy Giuliani.) 

So unless you genuinely expect to see United States v. Donald J. Trump sometime within the next three months or so, then we’re talking about DOJ allowing nearly two years to pass between commission of a crime that threatened our democracy, and criminal consequences. That’s tough to envision and, if a charge does happen, the delay will be difficult for Garland to justify. 

Of course, the political world will change after midterms. History tells us the Democrats are virtually certain to lose control of the House, and potentially the Senate too. In six of the past seven midterms following election of a new president, that president’s party has gotten crushed in the House (the lone exception being 2002, when George W. Bush was still riding a post-9/11 wave of popularity). Senate results also have been grim for new presidents, though not as drastic. Given Democrats’ current razor-thin margins in the House and Senate, and President Biden’s low approval ratings, they’ll likely lose one or both houses of Congress. 

A Republican-controlled Congress can make life miserable for DOJ. Don’t get me wrong: Congress should remain entirely hands-off when it comes to the Justice Department’s prosecutorial function. But do you trust a newly-empowered Republican House majority, led by Kevin McCarthy and Jim Jordan and Louie Gohmert and Lauren Boebert, to do the right thing here? 

A new Congress might call hearings and demand answers from DOJ officials about the investigation and its underpinnings. The Justice Department would be right to resist and potentially even refuse, but it’ll be an ugly sideshow. Congress could tinker with DOJ’s funding, or threaten to do so, as a retributive measure. Do you put it past the current slate of prominent House Republicans? Or, at an extreme, a Republican-controlled House could bring impeachment proceedings. Think that’s a bit much? Well, Axios recently reported that “The largest body of conservative House members — the Republican Study Committee, which represents more than 150 members — is laying the groundwork to push for the impeachment of Homeland Security Secretary Alejandro Mayorkas.” They could just as easily turn their sights on Garland, if sufficient political motivation arose. Again: do you trust McCarthy and company to show restraint with their newfound power?  

Further complicating matters, once the 2022 midterms end, the 2024 presidential election cycle begins. Trump might announce his candidacy immediately and, even if he doesn’t, he will be the prohibitive Republican frontrunner unless and until he formally declares that he’s out. So now, consider this: can you really see Merrick Garland authorizing the first-ever indictment of a former president, who also happens to be the active presidential nominee, or presumptive nominee, of the opposing political party? And can you see that happening two years (or more) after the events at issue, just as the next election hits the political radar? 

It’s possible, sure. But a post-midterm indictment would lend ammunition to the inevitable cries by Trump and his allies that any prosecution is a politically-driven witch hunt. It’s already tough enough, politically, to indict a former president. It’s even more fraught to take down the other party’s presumptive nominee after the new election season has begun.

Finally, let’s consider this reality: if Garland does charge Trump, there’s going to be an actual case to prosecute. Trump will surely seek to have it dismissed based on selective prosecution (meaning he was singled out for political reasons) or some version of presidential immunity doctrine. Those arguments are questionable, legally, but Trump will duke them out in the federal courts, and that’ll take time. And if Trump loses those arguments, we’re going to have an actual trial, folks. When exactly is U.S. v. Trump supposed to be tried? In late 2023 or early 2024, with elections right around the corner? It’s tough to imagine that the politics-averse Garland would sign on to that.

The debate surely will rage on about whether Garland has meaningfully and pragmatically set his sights on Trump. Someday, we’ll find out. No matter what happens, the delay in reaching a resolution is counterproductive and inexcusable.

Stay Informed,

Elie