As the January 6 Committee hearings reveal shocking evidence about Donald Trump’s efforts to overturn the 2020 election, pressure is mounting on Attorney General Merrick Garland and the Department of Justice to prosecute the former president. The public conversation has revolved around what are often thought to be two competing interests: Garland’s efforts to depoliticize the DOJ and his duty to uphold the law.
This framing pits the two aims against one another. But historic parallels demonstrate that this is the wrong way to think about the DOJ’s future. Garland cannot restore the integrity of the department without prosecuting Trump and his allies.
When President Joe Biden considered candidates for attorney general, he selected Garland to “restore the honor, the integrity, the independence of [the] Department of Justice in this nation.” Trump’s politicization and machinations had badly undermined the department. We knew about his firing of Jeff Sessions because the former Alabama senator recused himself from the Russia investigation and his dismissal of William Barr for his assertion that there had been no meaningful fraud in the 2020 election. The January 6 Committee has revealed further details on Trump’s efforts to install a mid-level environmental attorney as attorney general because he would go along with the efforts to overturn the election. Biden understandably wanted an end to politicization and named the widely respected Garland as his nominee. But the president-elect did so the day after the January 6 attack, meaning Garland would be tasked with prosecuting those who had attempted fraud against the U.S. government, culminating in the insurrection.
Garland is particularly well suited for the first goal. He embodies the values that make up judicial temperament, defined by the American Bar Association as “compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice.” Since taking office, he has made major strides in improving public respect for the DOJ and morale within the department. He has restored many norms that were broken during the Trump presidency, including avoiding political rhetoric, leaving line prosecutors to do their jobs, and defending career staffers. Garland’s prosecution of the Oklahoma City bombing case led to his DOJ tenure during the Bill Clinton years. His time on the D.C. Circuit Court of Appeals, the nation’s second-highest court, earned him plaudits as a moderate voice by Republicans and Democrats alike, which is why President Barack Obama nominated him for the Supreme Court. Garland was the victim of brute politics and surely wants to avoid it as attorney general.
The second goal has proved a bit trickier. The DOJ has never prosecuted a former president. This reluctance is understandable—historically, the department has been slow to bring charges against former political officials unless faced with overwhelming evidence, to avoid even the appearance of partisan retribution. However, the lessons from Watergate, far from underscoring the wisdom of eschewing prosecution, demand the indictment of Trump as one of the architects of the January 6 coup attempt.
On June 17, 1972, five burglars were arrested for breaking into the Democratic National Committee offices at the Watergate complex. Over the next two years, President Richard Nixon, his aides, and senior government officials conspired to destroy evidence and obstruct the inquiries.
In the wake of press and congressional investigations, Nixon resigned to avoid impeachment. President Gerald Ford pardoned him shortly thereafter, a politically unpopular move at the time, especially among Democrats, and a decision whose wisdom historians have questioned in light of Trump’s presidency. While choosing not to indict Nixon, the special counsels and the DOJ indicted 40 officials. John Dean (the White House counsel), H. R. Haldeman (chief of staff), John Ehrlichman (counsel and assistant to the president), and John Mitchell (attorney general) all served prison sentences for their roles in the cover-up. Under the direction of Ford’s attorney general, Edward Levi, and Jimmy Carter’s, Griffin Bell, the DOJ implemented reforms to prevent future Watergate-style corruption.
The prosecutions and subsequent changes renewed trust in the Department of Justice in a moment of grave importance. While public trust in government has never fully rebounded, the DOJ has been generally considered more trustworthy than other institutions.
As the historian Timothy Naftali has argued, we misremember Watergate at our peril. Yes, the break-ins were illegal. So, too, was the cover-up. But there was no evidence that Nixon ordered the initial burglary of the DNC offices at the Watergate, and the individuals responsible for the crime were brought to justice. By contrast, Trump seems to have been the ringleader of the attempts to overturn the election, despite repeated warnings from his own officials and allies that it was politically foolish and legally fraught. From calling the Georgia secretary of state to “find” more votes to encouraging a mob he knew to be armed to storm the Capitol to interfere with the electoral count, Trump was in many ways Nixon’s opposite. He initiated the crimes and announced most of them at every turn. The implications of Trump were far more damaging to our democracy.
There is no doubt that prosecuting Trump will be deeply divisive in the short term. It will exaggerate partisan divisions and likely lead to political violence. But not charging him will be worse. Letting Trump’s actions go without even an indictment would establish that laws don’t apply not only to sitting presidents but to former ones as well, enshrining them as somehow above the average citizen. Such a de facto acquittal would forever undermine the rule of law and tarnish the DOJ.
Therefore, Garland cannot restore the dignity of the Department of Justice without prosecuting the January 6 attack. And he cannot fully prosecute it without addressing Trump’s central role.
To be clear, there is no reason to believe that Garland won’t prosecute Trump, and I have no inside information on the status of the DOJ investigations into other conspirators. However, there are signs of a federal prosecution that goes far beyond the mob that entered the Capitol. Indeed, the recent seizure of John Eastman’s phone and an FBI search of Jeffrey Clark’s home indicate that a federal probe is reaching the higher levels of the Trump White House. Recent reports that the DOJ is taking a keen interest in the efforts within the administration and its allies to promote slates of phony electors are particularly intriguing. The bogus authentication certificates would give the DOJ a swift path to prosecution for creating the fraudulent documents and submitting them to the department. The former president is inevitably entangled in those cases.
The prosecution of a former president should be uncomfortable for any attorney general acting in good faith. But the nation’s premier law enforcement officer shouldn’t let discomfort distract from duty. The sanctity of the electoral process is at the heart of a democracy. Defending the ballot, Congress, and the nation from attack should be the highest goal of the attorney general, integral to their oath to defend the Constitution. Prosecuting those who attack democratic institutions, no matter what office they once held, is the best way to restore the dignity and independence of the DOJ.
