Man Out Of Time

Merrick Garland is not a physically imposing man. He’s short standing 5’6″. Donald Trump would have never cast him as Attorney General. Joe Biden did. The country is lucky. Donald Trump is unlucky.

The Attorney General’s public demeanor is stoical and reserved. His antagonist is emotional and vituperative. Garland is underrated by his critics on the right and left alike. The Kaiser of Chaos is overrated by friend and foe alike. I’ve always rooted for the underdog. I’m not religious but I like this phrase: “The meek shall inherit the earth.”

Underneath the AG’s meek exterior, is a steely interior. His formative public moment was managing the prosecution of the Oklahoma City bombing case. Timothy McVeigh was a charismatic figure who attracted support after his arrest. Appalling but true. Merrick Garland persevered insisting that the case be done slowly and methodically.

Our readers know that I’ve been a steadfast defender of the Garland method. Prosecutions should be based on crimes committed, not focused on individual miscreants. That was the problem with Ken Starr’s investigation of President Clinton. His focus was on the individual, not the crimes. It’s why Clinton survived, and Starr became a symbol of prosecutorial overreach.

This introduction was inspired by an exceptional piece by Franklin Foer in the Atlantic: The Inevitable Indictment Of Donald Trump.

Foer’s piece confirmed and crystallized my own thinking on the probable prosecution of former President* Pennywise.

Foer takes a deep dive into Merrick Garland’s career and draws the conclusion that, as I said in 2021, it’s Merrick Garland’s time. He’s the right man for the job and the right lawyer to take on Donald Trump.

Garland’s mild-mannered public persona may not be to everyone’s taste, but he understands that the Attorney General is the people’s lawyer, not the nation’s top cop. The press may insist that AGs are law enforcement officers but they’re attorneys who investigate and when the case is ready, prosecute. Premature prosecutions are usually doomed prosecutions.

Garland’s slow and methodical style has infuriated many, but reluctance is in order when the target of the investigation is a former president* who is the frontrunner for his party’s nomination at the next election. Democracies *should* be reluctant to prosecute former presidents. Trump may admire strongmen, but I do not. We don’t want to become a country like Pakistan where former presidents are routinely jailed.

Franklin Foer is an excellent storyteller. I really dug this passage:

When he was on the bench, Garland would occasionally orient new clerks to his idiosyncrasies by playing a song by the band Vampire Weekend which contains the refrain, “Who gives a fuck about an Oxford comma?” It was amusing because the band was so distant from his range of expected cultural references, and because the strait-laced attorney general would never utter that sentence himself. It was also funny because Garland does care about punctuation, deeply.

Far be it from me not to post a song cited by Judge Garland:

I used to disdain the Oxford comma, but I’ve become an advocate over the years; much like Garland’s evolution in office over the last 22 months. He slowly but surely moved toward the inevitable indictment of the Impeached Insult Comedian. The political system didn’t deal with the Trump menace, so it’s time for the legal system to do so.

There are many fine passages in the Foer piece, but this is the money quote:

Over the course of my reporting, I came to appreciate that the qualities that strike Garland’s critics as liabilities would make him uniquely suited to overseeing Trump’s prosecution. The fact that he is strangely out of step with the times—that he is one of the few Americans in public life who don’t channel or perform political anger—equips him to craft the strongest, most fair-minded case, a case that a neutral observer would regard as legitimate.


United States v. Donald Trump would be about more than punishing crimes—whether inciting an insurrection, scheming to undermine an election, or absconding with classified documents. An indictment would be a signal to Trump, as well as to would-be imitators, that no one is above the law.

This Attorney General is not given to hyperbole. When Merrick Garland says “no one is above the law” he means it. Take it to the bank.

I believe an indictment in the stolen documents case is the most likely first step. There’s black letter law that supports a prosecution. It appears to be close to a slam dunk case. It’s certainly a good place to start.

DOJ policy is to indict defendants when the case is winnable. That is the most winnable case. I suspect there will be other indictments but I’m not ready to take those to the bank just yet.

Foer describes Garland as a man out of step with the current zeitgeist, which is characterized by rage.

I think he’s a man out of time.

The last word goes to Elvis Costello: