Merrick Garland’s end-around

| 7:00 pm EDT July 31, 2022
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We are sometimes baffled by the American legal system. I know I am. But a surprising amount of it makes sense when viewed from afar, after the rationales are finally made clear to us.

I’m thinking specifically of the first murder trial of former New England Patriots star Aaron Hernandez. Hernandez and two accomplices lured an ostensible friend named Odin Lloyd out one night night and murdered him. The judge in the case, E. Susan Garsh, ruled to disallow a similar earlier case where Hernandez unexpectedly shot and critically wounded another friend. The disallowing made room for Hernandez to mount a defense based on his insistence that he would never shoot a friend.

I was baffled by Judge Garsh’s decision until Hernandez was found guilty and sentenced to life without possibility of parole. It was then that I found an explanation in an article. Hernandez had absolutely no grounds for appeal. They could not claim, for example, that the judge had unfairly prejudiced the jury by allowing testimony of “prior bad acts.”

Successful appeals have been known to be launched on just such pretexts. The Hernandez prosecution was and remained airtight. Judge Garsh, in her wisdom, recognized that the prosecution had sufficient cause to show guilt beyond a reasonable doubt, and she let the evidence speak for itself.

I cannot help but wonder if many of us are baffled by attorney general Merrick Garland for similar reasons. It may be that we don’t yet have the whole picture, and more and more evidence is emerging that this could be the case. Until recently the DOJ has remained tight lipped about any possible investigations of Donald Trump. However, the Washington Post recently announced that Trump is indeed under investigation by the DOJ, and AG Garland recently reaffirmed his earlier avowal that all participants in the January 6 insurrection will be investigated “without fear or favor.”

If, on the other hand, Garland’s DOJ had gone after Donald Trump from the very beginning, loudly and publicly with the zeal many of us expected of them, it could have been said that their overtly zealous pursuit was guided more by politics than jurisprudence. That would have fuelled the Republican narrative that all such investigations were and are “witch hunts” far more than they already are. And they might have even had a point.

For example, I seem to recall Nancy Pelosi receiving a lot of heat from Democrats for not impeaching Donald Trump immediately upon picking up the Speaker’s gavel. Indeed at the time she said, “Impeachment is not on the table.” She wanted to give Trump a chance. The criticism she endured evaporated when articles of impeachment were finally drafted for cause, when Trump attempted to bribe or blackmail the president of Ukraine for a corrupt purpose. Nancy Pelosi’s critics may still be legion, but not because she was insufficiently hasty in impeaching Donald Trump.

Justice comes best when it is measured and controlled, without passion or prejudice, and not as the result of the whim of mobs with little or no impulse control. It is the final best evidence of our own commitment to the Constitution — specifically in this case the Fourth and Sixth Amendments — that we believe due process should be meted out even for our bitterest enemies in equal measure, as much for them as for ourselves. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.