Here comes the ultimate litmus test for Merrick Garland

For those of you who have been wondering what Merrick Garland’s Department of Justice plans to do about the pirate ship sometimes laughingly referred to as the Trump administration, you will soon have to wonder no more. Here comes a fast and accurate litmus test.

Bennie Thompson, the chairman of the select committee probing the Jan. 6 attack on the Capitol, said he will issue criminal referrals for anyone who defies his subpoenas. The seriousness with which the Department of Justice takes those referrals should give us significant insights into DOJ policy toward Trump criminals in general.

We watched with helpless fury as Trump officials — including former Attorney General William Barr himself — defied with impunity subpoenas issued by Congress in the impeachment of Donald Trump. Will they be able to get away with it this time?

In theory no. For each failure to appear (FTA) Chairman Thompson intends to issue a criminal referral to the DOJ. It’s up to the DOJ how they act on those referrals, but each FTA charge carries with it a statutory maximum of a six figure fine and up to a year in jail.

Barr’s Justice Department naturally declined to act on criminal referrals sent to it by the Democratic members of the Trump impeachment committees. What will Merrick Garland’s DOJ do? If any dare to defy the Congressional subpoenas then we shall see.

In July of 2019 the Democratic House voted to ask the Justice Department to prosecute Attorney General William Barr and Commerce Secretary Wilbur Ross for defying Congressional subpoenas. It was only the second time in U.S. history that Congress held sitting cabinet officials in contempt of Congress. It was also like asking the fox to guard the henhouse and therefore doomed to failure. The best they could hope for would be to litigate the matter in civil court, a lengthy and ultimately dispiritingly unsatisfactory process.

This time around Congress could be pushing against an open door. The DOJ should do their job, and anyone defying Congressional subpoenas will be subjected to, in theory at least, the full fury of the law. Once charges have been issued it could be too late for the subpoena defier to change his or her mind. Citations are sometimes reconsidered but only after substantial compliance. In other words, they probably won’t be able to take it back and show up late. They’ve already committed a crime.


I don’t know about you, brothers and sisters, but for me, seeing some high government officials actually go to prison will go a long way in restoring my own faith that the ideal of equal justice under the law is occasionally actually true. So far all we’ve seen are small fry in jail. It seems sometimes justice is only ever swift and terrible for the voiceless and people of color. I want to see swift and terrible justice for some big fry, too. I want to see big shots go to jail. I’m tired of waiting and I have the right to be tired of waiting. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.

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