BONUS: Merrickal Error | Crooked Media
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October 23, 2022
Positively Dreadful
BONUS: Merrickal Error

In This Episode

Frank Foer stuck around long enough to talk about his recent profile of Attorney General Merrick Garland in the Atlantic, which is really an investigation of the question, Will Garland indict Donald Trump? And to what extent does the light-touch way the Justice Department has gone about investigating Trump until recently stem from Garland’s own internal contradictions? Brian and Frank discuss the fairly apparent tensions between Garland’s sense of himself, his actual personality, and the momentousness of the dilemma staring him in the face—if he is going to pull the trigger.






Brian Beutler: Hey, dread-heads, it’s Brian. And you’re hearing from me a bit off schedule because we got a little lucky this past week and have more stuff to share with you. So if you listen to Friday’s episode with Frank Foer and please do listen to it, I allude in the intro and then in our conversation to an article he wrote recently for The Atlantic, which is a profile of Attorney General Merrick Garland. And really it’s an investigation of the question, will Garland indict Donald Trump? We didn’t know Frank was working on that piece when we reached out to him to talk about Elon Musk and Twitter and the whole global right wing authoritarian alliance. So when The Atlantic published it, we realized we had a great opportunity to pick his brain about Garland, too, and not just about the will he won’t he question, but also about the fairly apparent tensions between Garland’s sense of himself, his actual personality, and the momentousness of the dilemma staring him in the face. If he is going to pull the trigger was there a better time and way to go about it? And to what extent does the light touch way the Justice Department has gone about investigating Trump until recently stemmed from Garland’s own internal contradictions. So this is that bonus conversation. It runs about an hour, and we’ll be back to our regular schedule on Friday. I hope you enjoy it. Okay. So after all that, let’s table Elon Musk and Twitter and the whole topic of the episode and talk about something completely different. As we were planning this and booking you as our guest, you published a piece at The Atlantic where you’re a staff writer profiling Merrick Garland and trying to intuit through what you learned whether he will indict Donald Trump. Would you spoil your conclusion for anyone listening who hasn’t read it?


Frank Foer: Yes, [laughter] that’s the answer. He will indict, Donald Trump. And it was I should just caveat this in a couple of important ways. The first is, in the course of my reporting, I got to talk to some top people at the Justice Department. And I spent about an hour and a half with Merrick Garland himself. And the people at the Justice Department, at least in their dealings with me, were very, very careful not to discuss ongoing investigations. So they never tip their hand as it relates to the big question. And so what I tried to do was to study, study the man. Study his approach to law, study the way that he’s managed the Justice Department to see what what my take was on the answer to these questions. And I should admit that I started probably leaning towards the skeptical on this question that I you know, when I when I began, I thought the investigation seems to be quite slow moving, his caution is so overwhelming it’s never going to happen. But then really, over the course of this last summer, a couple of things happened. The first is he gave some speeches which to me signaled that the job of being attorney general in the era of Donald Trump had actually started to change the man himself. That that being attorney general is one of the most panoramic positions that you could have in America. You get to see everything that’s happening on the ground, through the courts, through the FBI, to the fact you’re dealing with national security, domestic security. And I think that Garland, who entered the office as a as a cautious, hyper prudential institutionalist, has been changed by what he’s seen percolating through American life. I mean, it’s distressing. Maybe it shouldn’t take being attorney general to kind of come to the realization that the country is running seriously off the rails. So that happened in the second is the Mar-a-Lago investigation came to the fore. And the question of whether Donald Trump gets indicted is, of course, you know, three or four or five or half a dozen different questions. At the end of the day, there’s the January 6th investigation. They’re ancillary investigations to January 6th about the fake slate of electors that grand juries are pursuing. And there’s this question about the documents that were purloined, to Mar-a-Lago, and held there, despite repeated efforts of the archives in the Justice Department to retrieve them. And the most basic of these questions is really the documents one, just because the crime is is so blatant, and it’s also an offense against the Justice Department itself. And so Merrick Garland, as an institutionalist, I think, has also been somewhat radicalized by the fact that Trump has so like has attacked the Justice Department itself in a very direct sort of way, accusing it of planting evidence, fomenting threats against Department of Justice employees. And he’s basically striking Merrick Garland’s nerve when he’s doing all these things. And so I think once you set down the course of investigating the Mar-a-Lago. Document question. I think that’s when it starts to get inevitable to me that Donald Trump will be indicted.


Brian Beutler: So I was going to ask you where you were before you started reporting, what your sense was, whether the process of reporting had sort of confirmed your preconceived notions about him or refuted them. Instead of that question I’ll ask. Since you published it, have you, have any of the people that you talked to pushed back in any way or have you has anything else just sort of come out of the woodwork to make you have—


Frank Foer: Yeah, it’s interesting. It’s interesting. I mean, I’m not sure just given their reticence to talk about the investigation itself, whether they would push back against me. But I haven’t actually received any push any I haven’t received any official pushback against my conclusion, which, again, you know, there could be a variety of reasons [laugh] why that’s the case. You know, I would say you it just to your first question about whether how I approach this question, how I approach Merrick Garland. I mean, I really like everybody who watched the January 6th hearings. I mean, it’s hard not to be influenced by the crystalline clarity with which they presented the case that they have presented. But I think what I you know, I found myself more sympathetic to Garland in the course of just understanding the case that he would have to put together as it relates to January 6th and all the reasons why, you know, clearly they started slowly with these investigations, but once even after they’ve started to acquire momentum, which they seemingly have acquired, they’re still very hard cases to bring. And, you know, I think that the idea that maybe you’d want to air on the side of, you know, locking down your case, getting getting this buttoned up thing like, you know, our culture craves instant gratification, is very, very hard to sit and watch something when the injustice is so obvious and to see the response to it so slow. But, you know, there’s there’s a there’s a balance. He needs to get it right because the consequences of getting it wrong are so huge. And yet if you wait too long, then there is no accountability. And we’re approaching, I think, the window where something probably needs to happen or it will never happen.


Brian Beutler: I think you’re right about that. I have so many conflicting thoughts about the Garland question at hand.


Frank Foer: Yeah. Yeah.


Brian Beutler: That I want to get to. And I’m going to I’m going to bracket him for second because beyond his whether he’s reticent or whether he’s scared or whether he, you know, whatever’s going on inside his head, the picture that emerges from your piece is very much this man of the Justice Department, right.


Frank Foer: Absolutely.


Brian Beutler: I mean, obviously, he he is one. And as you said, like the Justice Department, he took over is now under direct attack by Trump. And the crimes of that are being investigated in the Mar-a-Lago case are ones where like like when Edward Snowden steals documents, like everyone who’s part of the intelligence community will happily tell any reporter that they’d be happy if Snowden were put to death. Right. Like it’s a kind of crime that that part of our government just doesn’t tolerate. And the Justice Department tends to move swiftly against them when they’re not Donald Trump. Right. So I get how he could feel pressured in this case where he felt sort of averse in the other. But when he started on the job, what concerns me is that he wasn’t he didn’t strike me as a man of the Justice Department. He struck me as a man of like of the appellate bar. And that’s a very different culture, right? Like in the appellate bar, everyone wants everyone else to like them. Courteousness is like the coin of the realm. It’s very important to indulge in fictions about the impartiality of the judiciary, its imperviousness to political pressure, on and on and on. And it worried me that someone like that was a poor fit for the moment where you have this extraordinary partisan corruption and and and bringing people who engage in it to justice would be antithetical to that kind of clubbyness.


Frank Foer: Yeah.


Brian Beutler: And so I wondered if you got any sense of how that part of his professional background looms in his life now? Like, if it still affects his thinking or if he’s completely shaken it off.


Frank Foer: I’m sure it still affects his thinking. I mean, part of what you see you’re describing you’re describing a position and a personality type that actually, I think, blended in the figure of Merrick Garland that he is somebody. I think he isn’t somebody who’s inclined towards towards confrontation. And I think that the the the the culture of the appellate courts, which he was a part of for decades, definitely was with him. And I think it really hobbled him on his way into the building. Just from what I gather about the culture of the building, like it was happening, he came in the middle of the pandemic. I think he was very much in an ivory tower for a good part of it, and he took some heat for that. And I think he’s he’s actually he’s somewhat he doesn’t want to believe that he’s responsive to criticism, but he actually is responsive to criticism, especially, you know, his his his world is like really, it’s not the world of like socially. It’s like he’s hanging out with John Roberts. Like when he was when he was on the bench, for sure, he socialized with John Roberts and had to establish a working relationship with John Roberts and Brett Kavanaugh. But I think socially, his world is very much like top officials in the Biden administration and like liberal. Power lawyers in DC. Who. So I think that that probably has more. You know, that’s his milieu and that’s more likely to be the thing that is he’s influenced by at the end of the day. And he’s like he’s like a New York Times reading guy. You know, he’s not…


Brian Beutler: Exactly when he reads like the palace intrigue story in The New York Times, where Joe Biden is frustrated with his, you know, Hamlet-like professorial tendency and like he’s just not moving. You know, I don’t know what the source of that story was, but Garland would have read it and it and he would have—


Frank Foer: It would have pissed him.


Brian Beutler: Because he’s a human.


Frank Foer: Yeah, it would’ve pissed him off. But this is this is actually I think there’s if I can just be armchair psychologist, I think that there’s two steps to that story.


Brian Beutler: Okay.


Frank Foer: It’s like on the one hand, he’s probably pissed off at the pressure because none of us like to feel pressure. Like when you when when you had a piece that was due. And I was like, I’m like, you know, I’m hovering over you to try to make you hit the deadline you’re resenting me for like putting pressure on you for—


Brian Beutler: Never happened.


Frank Foer: And but then there’s this other step where when he gets to this moment where he’s got to raid Donald Trump’s house or do something that’s unprecedented and he has to engage in a more confrontational relationship with Donald Trump, I think in his own head, he then he has then reached the point where he’s telling himself, you know what? I’ve done this all the proper way. Like nobody actually could accuse me of being a partisan hack as I go about doing this unprecedented thing, because I’ve taken so much heat from my own side along the way. And for him, I think that knowing that he’s done it all precisely and he’s done it all in the right spirit, I think is the most important thing. And so. And kind of. In a counterintuitive sort of way, the criticism stings and then it alleviates whatever anxiety.


Brian Beutler: And there’s a third thing, too, which is that like the scuttlebutt now might be that Biden’s like, why are you why are you taking your sweet time, dude? But like the scuttlebutt when Garland got the nomination was that Biden wanted to move past Trump, and Garland was going to be the guy who [laugh] he didn’t want, didn’t want any part of that. And so it was a match made in heaven for that reason. And so it’s like schizophrenic on Biden’s part to now be leaking the opposite. But. Okay. This this supposition that he’s done everything by the book. Let’s talk about that. Like let’s also let’s assume you’ve got Garland dead to rights and that your—


Frank Foer: I may not. [laugh]


Brian Beutler: Conclusion, yeah, I know, I know. And you and you write about that in the piece like that that you could be wrong. Of course, obviously. A sort of—


Frank Foer: Maybe not so obviously, but.


Brian Beutler: [laugh] No, well, I mean just in that you can’t predict the future whatever. A premise of the Garland approach is that slow going is important to pulling it off. And and you more or less just articulated that and like that. If you take great care and you follow the rule book and you maybe even convey a sense of reluctance that these are like an essential ingredient, that you can’t indict Donald Trump in a blaze of glory. Right. Do you buy that? Because I kind of want to stress test that.


Frank Foer: Yeah, I. I think I do buy it. You know, I think that. I do think that it’s important for our system for people to be treated on the merits. I think that every public corruption case that the Justice Department prosecutes, every time they go after an elected official and and former elected officials, they tend to be extra concerned about not screwing up. So I think that. You know, I think that there’s like there’s the right reason to prosecute Donald Trump and then there’s a wrong reason to prosecute Donald Trump. The right reason to prosecute him is that he’s created is committed, you know, he’s committed important crimes that deserve to be punished. And nobody is above the law. The wrong reason to prosecute him is because he represents a democratic emergency and needs to be stopped at all costs. And I think that there are people who confuse the two sometimes. And. I so so I do think it’s I think there’s no reason you wouldn’t want to apply the same standards to him that you would apply to any other public official that you were you were prosecuting.


Brian Beutler: But do you have to, I guess, is a question. So you have in Donald Trump a a figure who committed this crime against democracy that entailed a bunch of felonies. And so even if your purpose in meting out justice swiftly shouldn’t be to be like a superhero for democracy, you have an opportunity to both move quickly and also in doing so, protect democracy. So why not?


Frank Foer: Right. So I would say there’s there’s an ethical question, which is that of all the norms that we have, like a lot of them are stupid and deserve to be jettisoned. They’re kind of relics from another time. But then the rule of law and kind of the fairness of our judicial system, I think, is essentially. The the core of democratic order and so ethically and both as a matter of preserving the system. I think that it’s pretty important that it be done it be done fairly. And so that that’s the question. Your question is can it can it be done fairly and swiftly because a Democratic emergency demands that it be done fairly and swiftly. And so I. I don’t know how you get. So he made a mistake, in my opinion, in in slow walking some of this at the start. So there’s that. But. I think the question is just how much tension is there between being swift and fair and whether in the course of being swift, you somehow trample fairness. And engage with me on this because I do think it’s a fascinating question—


Brian Beutler: Yeah, yeah. I, so—


Frank Foer: I think this is like an important this is really like a core question for our democracy.


Brian Beutler: Yeah. So I guess look like when, when a when a new president comes in, a new administration comes in or new attorney general comes in, they you know, the law and policy are mostly separate, but they intersect. Right. And so the attorney general will deploy resources in one administration towards fighting trafficking. And in another administration, they’ll move towards drug enforcement, whatever. You know, they’ll they’ll set their priorities on the basis of what their values tell them is the most urgent thing facing America now. Or if you want to be cynical, what their what their partisanship tells them is the most important thing for them to to focus the Justice Department’s might toward. And so the Justice Department can move very fast when it wants to and and sometimes deprioritizes things and then move slowly. And, you know, your story notes that Garland says that you have to start with the overt crimes and move your way up the chain from there. Okay. Stipulate that the overt crimes are the ones that you can move fast on and that you have to prosecute first. Well, A, you have the strike while the iron is hot. Necessity when as pertains to Trump—


Frank Foer: Yeah.


Brian Beutler: And an effort to overthrow the election. You are at the same time you had the Raffensperger phone call like it’s on tape. Pretty overt, right? You had Robert Mueller’s evidence of obstruction of justice like it was just sitting there. You had SDNY, and it had evidence of like campaign finance fraud in the Michael Cohen case and in the same way that you could get Al Capone for tax evasion, you could get Donald Trump for whatever, really. And it would be fair. And the evidence is there. Garland left it all on the shelf and what you portray as being like like rectitude and following the norms and not letting politics drive it to me. Or at least you can be viewed from a different perspective as being highly political, as being evasive as, as like establishing a new like, yeah. Footnote on the rule of law that says Donald Trump is exempt from a lot of this stuff and now, you know, he’s full speed ahead on the Mar-a-Lago case perhaps. But the the. Strike while the iron. The iron is no longer hot. It is a cold iron. And, you know, that’s allowed Trump to put the insurrection behind him somewhat. Get get the GOP fully regrouped around him. And if you look at it from that perspective, then Garland’s ambivalence isn’t helping the cause of bringing Trump to justice. It’s really hurt it pretty badly.


Frank Foer: So. You know, as a non-lawyer, I, and as somebody. One of the maddening things about the Department of Justice is that it is a black box. And I happen to think that what’s worse than missing cases is bringing cases and missing. I think that it was pretty clear with Trump that every time he was exonerated in any sort of way, even if it was an ambush, a technicality, he then used that to kind of to behave worse. And so lack of accountability, lack of accountability comes in various different shapes and forms. And so the worst would be prosecuting them and prosecuting cases that just didn’t they just didn’t stand up or juries acquitted him or, you know, he. So I think some of those cases, I, I don’t understand why the Georgia case is not the basis for a federal prosecution. But I’m admittedly not not a legal expert. I think that with January 6th, I’m struck by how the January 6th committee swung and whiffed on a lot of stuff and didn’t actually close the loop like if the real. So this is why the virtue of kind of taking the approach that he’s taken to January 6th is that. If the core of what happened on that day was that right wing paramilitaries conspired with the White House to overthrow to, to, violently disrupt a congressional hearing in order to overthrow an election like that. Which I think is what they were implying for a good chunk of the last couple of hearings, and they just didn’t have the material to make that case. And I think that is a case that needs to be built. There is there is there is wisdom in building a case meticulously, because you flip witnesses a lot of the the communication that exists while we have you ubiquitous text messages like a lot of stuff disappears because the people who commit the crimes know they’re committing crimes and they try to obscure the stuff that makes them culpable. And so I think that. By building a case from the ground up and by turning people and, you know, by by doing it the rigorous way. Think you’re you’re in the end, more likely to get the goods and get the goods in a way that sticks. [music break]




Brian Beutler: I think it kind of cuts both ways, right? Like the longer you wait to get around to it because you’re you’re dotting so many I’s and crossing so many t’s, the more time people have to destroy their text messages. And sometimes it’s the it’s that it’s the it’s the lack of alacrity that that, like, makes it difficult to piece together what happened. At a specific moment because over time, memories have faded. Evidence has disappeared. Evidence has been destroyed. And, you know, that’s a criticism I didn’t invent.


Frank Foer: Yeah.


Brian Beutler: That’s a, you know, criticism of Garland’s critics from the Justice Department or who are now former Justice Department officials have leveled against his like start with the rioters and move up the chain like this was sort of like like this was a mafia investigation.


Frank Foer: A lot of those critics, a lot of those critics have at least modified their criticism over the course of just watching this stuff become public. That’s become public.


Brian Beutler: They, they, Garland and the DOJ have more and have been doing more quietly than we’ve been aware of. And yeah, then they want them. When they do speak in court, it’s like, okay, I was overreacting based on incomplete information.


Frank Foer: Yeah, yeah.


Brian Beutler: I hear that. I you know, I also obviously Adam Schiff is has a rooting interest in how this all plays out. But, you know, he says that if if it had been a lower level person who called Brad Raffensperger to do the shake down, or if it had just been somebody who wasn’t even affiliated with Trump but was just a Trump loyalist who had a lot of guns and and called in and, you know, made implicit threats at the Georgia secretary of state that that person would have been indicted very quickly if it was if the phone call was recorded. And there was no doubt about what had happened or what the purpose was. And, you know, I, I, I get I feel like if there was a way to do it and Garland had done it to like come at Trump with lightning very fast in the immediate aftermath of the insurrection. It would not have felt like partisanship it would have it would have felt like it had a lot of integrity behind it. It would have felt like this is what a government does when when somebody tries to violently overthrow it and they fail is like the like justice will move swiftly. And and it would have occurred when when Trump was at a much more vulnerable place than he is now. And it wouldn’t seem like, oh, wow, it’s like, you know, Trump might run for president again and now you’re just trying to cut his legs out from under him to protect your boss like that. That looks much worse to me now, two years on than then. You know.


Frank Foer: I just I think, you know, I. I hear you, but I feel like. To some extent, like what you’re describing, just it it just doesn’t happen in the Justice, with the Justice Department. That’s just not the way. It moves. It’s even in the cases. You know, just take other examples. Like, I mean, I cite Garland’s involvement with Oklahoma City, which was not his to really decide that totally decided the time went on. It just takes a long time, like Enron or some of these cases, just like the nature of the way that they move is that they move. They move in this kind of, like, seemingly glacial way and—


Brian Beutler: Not always. I mean, like. Reality Winner was under indictment within days of sending documents. The Intercept. And they knew who Edward Snowden was before he revealed himself in that video. And obviously, they haven’t nabbed him. But they you know, I don’t I don’t it didn’t take two years [laugh] to to charge him.


Frank Foer: So so, I mean, we can we can definitely posit that there are like certain crimes that the Justice Department moves. Swiftly with and like other crimes where it doesn’t.


Brian Beutler: Yeah. I mean, I just think that there is a world in which the Justice Department could have had Trump under indictment by now if. It decided that doing that was a priority, both as a matter of. Adhering to the rule of law and seeing justice done and also addressing the threat to the system of government that allows the Justice Department to exist, sort of removing him from the equation. And I think that would have been perfectly justified. It’s using the law, just being aggressive with it. And the fact that it didn’t happen is makes me think that—


Frank Foer: It’s never going to happen.


Brian Beutler: Well, no, no. Because I actually I actually do think that it’s pretty likely that it’ll be indicted with the with the Mar-a-Lago stuff, but that the early slowness wasn’t just a matter of of being as complete as possible. It really was an attempt to try to to let Trump run out the clock, to not ever let this stuff reached the point where where there’s an indictment.


Frank Foer: See, see, I do think that there is I mean, is this is this maybe just like a irreconcilable matter of like different approaches to how you would you go at this at this problem. Like if we had if we had moved quickly and were able to to what what would be the X factor in moving quickly? You’d have to have an attorney general who decided this is like this is my priority is to start at the top, like this guy, Donald Trump is like an obvious is like an obvious criminal. And I’m not going to sit here and abide the fact that he’s not being held accountable for his crimes. And like clearly on I’m like on a moral level and like a societal level, like there’s there’s justification for taking that sort of approach. If you’re Merrick Garland, I mean, this is maybe just the problem of like appointing Merrick Garland who says, like, I have grown up with this principle that like you treat your foes the same way that you treat your friends, and I’m going to pursue this in the same sort of way that I would pursue any other investigation of a public official. I think that there is there’s ethical power to that approach. And the question really, at the end of the day is, as long as people are held accountable, in my my my view, it doesn’t it doesn’t really matter if it was if it was done at the beginning or at the end. Both of those have their different advantages. I think that you’re more likely to get something that sticks and we’ve like had enough opportunities to kind of try to nail crimes to Donald Trump where they don’t stick because oftentimes because we moved too quickly. I think in the you know, I think that I know there’s this new book out about impeachment. And I think that like in the quest to move too quickly in the second impeachment, there was evidence that was never, never uncovered that was avoided. And I’m not saying that the outcome would have been any different had they waited a week or two weeks because it required them bringing along Republicans who were never going to get it brought right along. Yeah, but but—


Brian Beutler: I have I have like the opposite view. I feel like I feel like the House could of impeach Trump on January 7th.


Frank Foer: Yeah.


Brian Beutler: And, and like at that moment of Republican disarray, who knows what would have happened? But, yeah.


Frank Foer: Yeah, yeah, right. Well, I mean, I guess what you’re you’re I’m not saying your arguments are I think your arguments are, you know, there’s a lot of legitimacy to your arguments, maybe your arguments are the arguments that would protect the democratic system better if we treated this in a utilitarian sort of way. Part of my having spent a lot of time in Ukraine and other countries where you get stuck in this cycle of like endlessly indicting former officials means to me that that’s part of what colors my like desire to have it be done in the most the way that’s most beyond reproach the way that that actually does treat this like it’s I mean, it is the norm that is being being broken and necessarily so. Right. It’s an unstated norm like we historically are not a country like France, Israel or Ukraine that goes after former presidents. And I think that when we do it, we should we should just we should do it in a way that does feel like it’s beyond politics, because in the long run, that’s our that’s our best hope for maintaining the system. I think it’s kind of politically, I don’t see it making a huge difference if Donald Trump is indicted or not indicted. Everybody knows who Donald Trump is. You know, and. It’s really a question of legal accountability for crimes that have been that have been committed.


Brian Beutler: Yeah. I mean, there’s there is a…


Frank Foer: I’m annoying you with my arguments right now.


Brian Beutler: No, no, no, no, not. Not at all. I’m just trying to think of how to say. How to say what I’m what I’m thinking. The, I, I would never think it was a good idea, even if it felt satisfying for the Justice Department to go after Trump in a sloppy way or in a way that was—


Frank Foer: Yeah.


Brian Beutler: That gave Trump like legitimate means of defeating him. And so my my argument would be to to do to do it in the fastest possible time or the shortest possible timeline while making sure that you had all the evidence you needed to prove beyond reasonable doubt. And I my sense is that in in other realms, at least, or in the Raffensperger case, like a related realm, like you have the evidence there is, I think, a problem with Donald Trump, which is that it may not be possible, even like in the District of Columbia, to try him in front of a jury that won’t have one person on it, that will nullify and and that basically he’s corrupted American society enough to place himself above the law when it comes to a jury of his peers hearing evidence against him. I don’t really know what you do about that. I think it’s very possible—


Frank Foer: Most prosecutors I talked to thought that that was a solvable problem.


Brian Beutler: Really? Okay. Like in D.C. yeah. But like in Florida, I mean I don’t know.


Frank Foer: I think that they would bring, I think that the odds are they bring the documents case to D.C..


Brian Beutler: Yeah, I was—


Frank Foer: Because why wouldn’t you if you’re the Department of Justice.


Brian Beutler: Right, he stole them from D.C. You could definitely indict here. Right. That but but if if that’s part of what’s. Got Merrick Garland so concerned about meticulousness and all that. I mean, I know that this would also be a violation of a norm. But like, if the reason Donald Trump ultimately doesn’t get indicted is because Justice Department leaders don’t believe they could secure a conviction and they don’t believe they can secure a conviction because out of every 12 people, one will will will be loyal enough to Donald Trump to—


Frank Foer: I don’t think that I would be shocked if that’s the way that they thought. I, I know that there, they want cases that stick. But I think that I think that’s largely when they think about that, they’re largely thinking about whether they’re abstractly able to persuade a jury, not whether they’re specifically able to persuade a jury.


Brian Beutler: Yeah, I guess.


Frank Foer: I mean, the District of Columbia is the District of Columbia. Like, you’re you couldn’t. It’s like—


Brian Beutler: You couldn’t. That’s the best jury pool in the country. [laugh]


Frank Foer: You couldn’t program a jury any better than that, right.


Brian Beutler: It’s it’s true. I just I would like to like if there’s going to be some reason other than we don’t have the evidence, if it’s going to be like we think that prosecutorial discretion means that the consequences to society would be worse to go the charging route than than to just set this case aside or the jury nullification thing or whatever the thinking is, if they have the evidence and for some other reason are determined not to bring the case.


Frank Foer: Yeah.


Brian Beutler: Then even though it would violate a different set of norms like we deserve to hear that.


Frank Foer: Yeah.


Brian Beutler: Like, like the, the Justice Department should break its silence and explain why despite—


Frank Foer: I agree. I agree.


Brian Beutler: And so yeah. And I agree with you, too, that like past maybe March of next year, it’s too late. And so if that, if we if we, if we hit that point and nothing has happened. Then I feel like it’s I don’t know I don’t know who the right person to to ask questions is, particularly if Democrats don’t control Congress anymore. But that at that point, like the conversation shifts from like, okay, like like why did the Garland Justice Department decide moving against Trump even after all this investigation was was not in the national interest like and get answers on that. Last question is—


Frank Foer: One thing I just want to describe I mean I think that you know part the way that the Justice Department has been constructed since Watergate is in a way that is highly decentralized. And so the a lot of these questions happened. They’re designed to be answered at levels like far below. Merrick Garland even that, even as Merrick Garland and Lisa Monaco keep tabs on this whole investigation and how clearly they’re like virtues and defects to that system. But I think that in terms of imposing himself on the Justice Department, I think the thing that he was reluctant to do and I think that would have been counterproductive is to kind of hover over prosecutors and say, why aren’t you doing this? Why aren’t you doing this? Why aren’t you doing this? Because that’s that’s that’s that’s a system. He built the system to operate in a totally different way where you don’t want political appointees, like urging on prosecutors by whispering in their ear, telling them to like to get indictments against these people that you don’t like.


Brian Beutler: Yeah, I mean, I’ve talked about this on a different episode. I think just that the, you know, the the system of justice that we have a rule of law system is like a really terrible vehicle for adjudging a crime that’s basically like we tried to overthrow the government, whether you charge it as sedition or anything else.


Frank Foer: Yeah, it’s true.


Brian Beutler: In that in that like it’s a sort of like come at the king. You best not miss. Situation where if you’re in the position to be charging those people, it’s because their plan failed. But if you don’t if you don’t move on them in some way, then it’s just sort of opens the floodgates to more attempts. And eventually one of those will succeed. [laugh]


Frank Foer: Yeah, yeah, yeah. No, I hear you. I agree with that. I totally agree with that.


Brian Beutler: So last question on this. If Donald Trump had not stolen any sensitive government documents on his way out the door or he had returned them in a timely fashion, do you think your conclusion would remain the same?


Frank Foer: No. I think my conclusion would be different. I just don’t, then it would be an open question to me. I just don’t. I just don’t know. I think that. I think that. I think it’s possible that he would he would get indicted for some of these crimes. But I think that those cases still feel very distant to me from being brought.


Brian Beutler: Yeah, yeah, I, I feel the same way. And I think it goes, you know, the Cohen case, the Russia case. Or I guess the Russia stuff, the obstruction of the Russia investigation, the Ukraine shakedown and the insurrection are are all crimes that at some level are about Trump’s elections right there.


Frank Foer: Yeah, yeah.


Brian Beutler: He did them, you know, for for that reason. And the document theft thing, I mean, I imagine in Trump’s head he thought the documents would help him in a future election proper.


Frank Foer: For sure, yeah.


Brian Beutler: But just stealing stealing material from the government is not so obviously like a crime of politics. And like I mentioned earlier, it’s the kind of thing where the people in the Justice Department and in the intelligence community are, I’m guessing, furious about what happened and will be furious if nothing happens to Trump. And so in that sense, it’s like if Garland was reluctant to to to move on any of the previous crimes, but felt bad about that in some sense like that he that he should be a little bit more confrontational with Trump, that this was sort of like a gift to him in that regard. And it’s sort of why the I think like why the cases seem to be moving at such different speeds.


Frank Foer: I agree with that. I mean, I think that and you know, this sense that. Donald Trump is in possession of something that could physically hurt the United States of America if it ended up in the wrong hands. I think that that that does tend to produce different levels of activity within the Justice Department. You keep you invoked the Reality Winner parallel I guess maybe that I guess that tracks this this tracks kind of closer to that in that there are certain crimes where the Justice Department and the state move more expeditiously because it touches some core sensitivity that that’s ingrained in the bureaucracy or the culture of the bureaucracy.


Brian Beutler: Yeah. You can’t have a bureaucracy that actually treats those crimes like no big deal or else the whole thing kind of unravels. Yeah. [music break] Positively Dreadful is a Crooked Media production. Our executive producer is Michael Martinez. Our producer is Olivia Martinez, and our associate producer is Emma Illick-Frank. Veronica Simonetti mixes and edits the show each week. Our theme music is by Vasilis Fotopoulos.