Like Morning Joe, Merrick Garland just surrendered to Donald Trump

This is how democracies die.

“Do not obey in advance. Most of the power of authoritarianism is freely given. Individuals think ahead about what a more repressive government will want and then offer themselves without being asked.”

Those words written by Yale Professor Timothy Snyder in his book, “On Tyranny” came to mind twice recently. The first was last week when MSNBC’s Joe Scarborough and Mika Brzezinski headed to Mar-a-Lago to capitulate to Donald Trump. And then again on Monday, when we learned that Merrick Garland’s Department of Justice was surrendering to Trump by voluntarily dismissing criminal charges against Trump in both the attempted coup and Espionage cases.

These two incidents actually share a great deal in common. Both involve visible people with power who are fully aware of the danger Trump poses to our Republic and who Trump has vowed retribution against. And both surrendered soon after Trump won, thus, emboldening the aspiring autocrat.

In defense of Jack Smith, he did move swiftly after being appointed Special Counsel in November 2022. The failure has always been and continues to be Merrick Garland, a person I have been vocally criticizing since late 2021 for his failure to timely prosecute Trump--even causing Democratic legal pundits to attack me in 2022 for not understanding how the DOJ works.

True, while I am a lawyer, I never worked in DOJ. But I’m a student of history and understood where this could go if Garland did not move swiftly. That is why in Jan 2022--on the first anniversary of Jan. 6--I wrote an op-ed for MSNBC pressing Garland to charge Trump that concluded with the line that if Garland didn’t move swiftly to hold Trump accountable: “I believe historians will count it among the key mistakes that ultimately led to the end of the United States as a democratic republic.”

To be clear, Special Counsel Smith’s dismissal was demanded by Garland’s DOJ as he noted in his six-page filing on Monday.  Smith wrote that, “It has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting President.”

The basis for that DOJ view is NOT a specific line in the US Constitution nor a US Supreme Court decision. Rather it was two memos drafted by the DOJ’s Department’s Office of Legal Counsel (OLC)—one in 1973 when there were questions about charging then President Richard Nixon in connection with Watergate and the second in 2000 when President Bill Clinton was embroiled in the Monica Lewinsky scandal.

But as Smith notes in his filing, neither addressed the facts before us of: 1. A former president charged as a private citizen for committing crimes--as in Trump’s Espionage and obstruction case; and, 2. A former President charged after leaving office for crimes committed in office--as we have with Trump’s Jan. 6 attempted coup case.

Smith—who has independence as a Special Counsel—is still required by way of DOJ regulations to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” Thus, Smith ask Garland’s DOJ for guidance. And as you would imagine, Garland’s DOJ-- that has failed to charge even one GOP official for their role in helping Trump overturn the 2020 election--told Smith to stand down.  

Smith wrote that Garland’s OLC “concluded that its 2000 Opinion’s ‘categorical’ prohibition on the federal indictment of a sitting President—even if the case were held in abeyance—applies to this situation, where a federal indictment was returned before the defendant takes office.”  In sum, as Smith noted, “Accordingly, the Department’s position is that the Constitution requires that this case be dismissed before the defendant is inaugurated.”

Smith has done all he can to warn us of the threat Trump poses. When the Jan. 6 indictment versus Trump was first unsealed in Aug. 2023, Smith publicly declared, “The attack on our nation’s capital on January 6, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies.”  The Special Counsel then took direct aim at Trump, “Lies by the defendant [Trump] targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting, and certifying the results of the presidential election.”

And earlier this year in connection with the U.S. Supreme Court case where Trump argued he should be immune from prosecution for any crimes he committed in office, Smith again rang alarm bells about what Trump was seeking. The Special Counsel wrote in a passage prescient for where we are today: “The defendant’s claim that he cannot be held to answer for the charges that he engaged in an unprecedented effort to retain power through criminal means…threatens the democratic and constitutional foundation of our Republic.”

In reality, DOJ voluntarily dismissing charges that Trump attempted to remain in office despite losing the 2020 election and dropping the more than 30 charges returned by a grand jury against Trump for violating the Espionage Act and for obstructing justice also “threatens the democratic and constitutional foundation of our Republic.”

Instead, DOJ should have continued prosecuting the case, thus, forcing Trump’s lawyers to make a motion to dismiss. The nation would’ve seen Trump asking to be placed above the law. And if the GOP controlled Supreme Court ruled in Trump’s favor, it would have reminded Americans that they are nothing more than part of the apparatus of the GOP.

If Trump refused to wait for that to play out in the courts and instead--after he was sworn in on Jan 20--directed his Attorney General to dismiss the charges, that would have created a national spectacle. The nation would’ve seen Trump saying he was in essence an untouchable king.

Both of these approaches would’ve shown DOJ was not going to voluntarily surrender to Trump. Instead, they were going to adhere to the line Garland has uttered so many times before: “No person is above the law.”

But the Federalist Society contributor Garland has zero problem with Trump being the exception to that rule.  Of course, this is the same Garland that had no qualms when comes to charging and prosecuting Democratic officeholders from NJ Senator Bob Menendez to NYC Mayor Eric Adams to even President Biden’s son, Hunter. 

Again, Garland and Scarborough have chosen to surrender to Trump—just as we can expect others will going forward. We must not. As Prof. Snyder tells us: “Do not obey in advance.”  Instead, we must take the fight to Trump. That is the way we protect our freedoms, our self-determination and our Republic.

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