During the last Administration, the media was (rightfully) critical of President Donald Trump’s repeated public calls for action from the Justice Department or attacking the handling of pending investigations. Legal experts lined up to denounce the damage to the independence of the Justice Department. The media and experts, however, have been largely silent as President Joe Biden has declared the guilt of individuals or promised punishment before even the commencement of investigations. The latest such example is the leaking of Biden’s desire to have Attorney General Merrick Garland prosecute Trump.
Notably, Trump often publicly made such calls for indictments or action from the Justice Department. Some of the Trump controversies came from statements that he made to subordinates in the White House to pressure his Attorneys General to act — pressure that they uniformly resisted.
Biden is now being widely reported as wanting Garland to prosecute Trump. His close associates made sure that the media reported that the President wants “Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.”
This leak was made after a district court judge declared that Trump likely committed a crime, an opinion that I recently criticized over its sweeping language and spotty analysis. Various Democrats are demanding that Garland prosecute Trump, telling Garland to “step up or step out.”
Two years ago, the media heralded the statements of D.C. Attorney General Racine that he was pursuing possible charges. Yet, neither Racine nor the Biden Administration have charged Trump. Why? The reason is that there is not clear evidence of a crime.
The leaking of the President’s demand puts Garland in an even more difficult position. The clear intent of the leak is to let Garland know what the President expects from him. Yet, Garland has already been criticized by some of us for refusing to appoint a special counsel in the Hunter Biden scandal.
What is most striking, however, is the absence of any concern from the same legal experts who denounced such statements from Trump. These are statements made to aides that were then leaked to the media to get to Garland. That allows the media to say that Biden never said it directly to Garland, but the message was delivered by the media.
For Garland to yield to such pressure would constitute a troubling departure from his predecessor, Bill Barr, who refused to do so on investigations ranging from the Mueller investigation to the election investigation to the Hunter Biden investigation.
Absent new evidence of direct culpability, such a prosecution would likely result in either acquittal or an appellate reversal. That would raise concerns over the Justice Department pursuing a political rather than a legal agenda — the very danger that Garland pledged to avoid when he stressed “I am not the president’s lawyer. I am the United States’ lawyer.”