Few noticed, but on November 18, Merrick Garland officially abandoned even the pretense of ever holding Donald Trump accountable for multiple crimes that the Department of Justice already found Trump had committed.

Garland might prefer that you forget the department’s findings, so let’s recap. In 2017, Acting Attorney General Rod Rosenstein appointed Robert Mueller as special counsel to investigate Russian interference in the 2016 election and any crimes, including obstruction of justice, that might arise from that investigation. In March 2019, Mueller released a comprehensive two-volume report of his investigation. In the second volume, Mueller found “substantial evidence” that Trump attempted to obstruct the investigation into Russia’s election interference in 2016 and coordination with the Trump campaign. Examples include firing former FBI Director James Comey, attempting to fire Mueller and curtail the investigation, and encouraging his associates not to cooperate with the government.

However, Mueller didn’t prosecute Trump for these crimes. In fact, despite laying out the evidence for everyone to connect the dots, Mueller declined to take that final step himself, instead making the curiously cryptic statement that if the evidence suggested Trump hadn’t committed crimes, “we would have said so.” Mueller relied on a controversial department policy that a sitting president can’t be charged with a federal crime while in office. But as Mueller himself noted, that policy “would not preclude such prosecution once the President’s term is over.”

At about the same time, a separate Department of Justice investigation, led by federal prosecutors in Manhattan, named Trump as an unindicted co-conspirator in separate criminal activities during the 2016 election. Prosecutors charged Michael Cohen, Trump’s former personal lawyer, with campaign finance crimes carried out to benefit “Individual-1,” who by January 2017 “had become the President of the United States.” (Not a lot of people fit into that category, but in case there was any confusion, Cohen told Congress under oath that “for the record, individual No. 1 is President Donald J. Trump.”) And Cohen wasn’t freelancing. As explained in the criminal information, Cohen arranged for payments to two former Trump mistresses to buy their silence for the purpose of influencing the 2016 election, in violation of the Federal Election Campaign Act. He told a federal judge and Congress that he arranged these payments “at the request of the candidate,” and his crimes were committed “for the benefit of, at the direction of, and in coordination with” Trump.

Cohen was sentenced to three years imprisonment, served time in federal prison, and is still on supervised release—for felonies he committed “at the direction of, and in coordination with … Donald J. Trump.”

Again, because of the department’s policy against prosecuting a sitting president, Trump was not charged with these crimes. But Trump, who continued to deny and conceal evidence of the scheme long after it was first revealed, is now a private citizen.

This is where we need to closely parse Garland’s appointment of a special counsel to investigate Trump’s interference with the lawful transfer of power following the 2020 presidential election and his subsequent theft of national security documents.

In explaining why he appointed a special counsel, Garland cited “the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well,” as motivating his conclusion “that it is in the public interest to appoint a Special Counsel.”

Those reasons, if taken seriously, would apply to all potential criminal investigations involving Trump. But Garland’s appointment order makes no mention of the obstruction of justice crimes that the last special counsel investigating Trump already identified, nor of Trump’s crimes identified by federal prosecutors in their 2018 charges against Michael Cohen. His order’s scope is expressly limited to Trump’s attempt to subvert the election, the ongoing investigation Mar-a-Lago investigation, and matters arising from these investigations.

In other words, Garland has done something quietly sneaky. By announcing a special counsel appointment predicated on Trump’s candidacy, then excluding from the special counsel’s scope the “shelf-ready” obstruction of justice crimes already identified by Special Counsel Mueller and campaign finance crimes already identified by Manhattan prosecutors (in the Trump administration, no less), Garland is telling us between the lines that that he is giving up on all of Trump’s pre-2020 crimes. Through this limited scope for the special counsel, Garland has given Trump blanket immunity for federal crimes that the department has already identified that Trump committed during the 2016 election and throughout the majority of his corrupt presidency.

Of course, Trump must be held accountable, in a timely fashion, for the crimes within the Special Counsel’s scope. But Garland’s absolution of Trump’s earlier crimes—and unwillingness to even state openly, let alone provide a rationale, that he was doing so—is a serious blow to the once cherished principle that no one, not even the president, is above the law.

Ron Fein is the legal director of Free Speech For People (FSFP), a national non-profit organization dedicated to defending our democracy and our Constitution. John Bonifaz is FSFP’s president. Ben Clements is FSFP’s chairman and senior legal advisor

Suggested citation: Ron Fein, John Bonifaz and Ben Clements, Merrick Garland Has Abandoned Prosecuting Trump’s Pre-2020 Crimes, JURIST – Professional Commentary, January 5, 2023, https://www.jurist.org/commentary/merrick-garland-abandoned-prosecuting-trumps-pre-2020-crimes

This article was prepared for publication by JURIST Staff. Please direct any questions or comments to them at commentary@jurist.org