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The Vacuum at Justice

Trump’s Justice Department is adrift. If Merrick Garland can’t find a way to fill the gap until January 20, anarchy will.
January 12, 2021
Featured Image
WILMINGTON, DELAWARE - JANUARY 07: Federal Judge Merrick Garland delivers remarks after being nominated to be U.S. attorney general by President-elect Joe Biden at The Queen theater January 07, 2021 in Wilmington, Delaware. Garland, who serves as a judge of the U.S. Court of Appeals for the District of Columbia Circuit, was nominated to the Supreme Court by President Barack Obama in 2016 but Senate Republicans refused him a hearing or confirmation vote. (Photo by Chip Somodevilla/Getty Images)

We have suffered a complete failure of leadership since January 6. That this surprises nobody doesn’t make it any less dangerous.

Had this been any other domestic disaster, administration officials would have been swarming the airwaves reassuring America that the situation was under control. The day after the Oklahoma City bombing, the Attorney General, the FBI Director and the Department of Defense all briefed reporters about the government’s response.

But in this crisis, there has been nothing: no press conferences, no speeches to the nation, nothing at all. Again, this isn’t a surprise. Cabinet officers have been fleeing the administration at an unprecedented rate. We don’t have an attorney general, we have an acting attorney general. Homeland Security is in even worse shape. On Monday, the acting director resigned leaving the head of FEMA to act as a sort of acting-acting-director.

This isn’t just administrative disarray, it’s administrative chaos. To make matters worse, what guidance these officials are getting from the top is pushing them in the wrong direction. America is adrift.

Lower-level officials, including local U.S. Attorneys and the FBI, are doing their best to handle the fallout from the January 6 attack on the Capitol and apprehend those they can identify as being responsible. But their job is enforcing the law, not setting policy or comforting the nation. We need more than that.

For one thing, the crisis is not over. A new FBI bulletin warns, “Armed protests are being planned at all 50 state capitols from 16 January through at least 20 January, and at the US Capitol from 17 January through 20 January.” There are multiple reports of discussion on social media about plans for disrupting Joe Biden’s inauguration.

The situation isn’t being helped by the way those that have been arrested are being prosecuted. “Knowingly Entering or Remaining in any Restricted Building or Grounds Without Lawful Authority” and “Violent Entry and Disorderly Conduct on Capitol Grounds” are typical charges. In both cases, the penalty can be less than a year in prison. This makes it seem like some good old boys got a little rowdy on a Saturday night and needed to cool off in the drunk tank.

But that’s not what happened. Let’s be absolutely clear: This was a massive conspiracy to attack the Capitol, the seat of American democracy, and stop Joe Biden from being formally declared the 46th president of the United States. And when I say “conspiracy,” I mean that in the strictly legal sense, not in the talk radio sense.

When people on Twitter, Parler, and other social media sites agreed to—and often coordinated—using force to disrupt the counting of electoral votes, they were engaged in a conspiracy. When rioters worked together to remove a barricade or break down a door at the Capitol, they were engaged in a conspiracy, as were the people cheering them on while they did so. People marching to the Capitol while discussing how they would break in and stop the vote count were engaged in a conspiracy, even if they never engaged in violence themselves.

This isn’t a demonstration that got out of hand. This is some of the gravest, most serious conduct that is punishable by law. These people weren’t trespassing, they were committing seditious conspiracy, a federal felony punishable by up to 20 years in prison. Then-Attorney General Bill Barr and current Acting Attorney General Jeff Rosen sent out a memo on September 17 reminding all U.S. Attorney that they should consider filing seditious conspiracy charges “where a group has conspired to take a federal courthouse or other federal property by force.” If charging seditious conspiracy is appropriate for Black Lives Matter protesters attacking a closed federal courthouse, it is a hundred times more appropriate for Trump supporters storming the seat of American democracy while Congress was actively fulfilling its constitutional duties.

The acting—note the acting—U.S. Attorney for Washington, D.C., Michael Sherwin, held an actual press conference on Tuesday and announced that he is considering seditious conspiracy charges for at least some of the people involved in the attack on the Capitol. He’s even assembled a team of national security attorneys to explore this issue. Good for him. Unfortunately, this coming a week after the event and it being an initiative from a single U.S. Attorney rather than official Justice Department policy tells you everything you need to know about the collapse of the Department of Justice chain of command.

Someone needs to take this situation in hand, reassure America, and set policy. And the only person who is now in a position to do that is Attorney General nominee, Judge Merrick Garland. While it may require him to resign from his current position as a judge to do so, Judge Garland should immediately schedule a news conference and explain to the country how the outrage of January 6th is going to be handled by the Biden administration. Most importantly, he should look straight into the camera and warn anyone planning on further violence and disruption that they won’t get a slap on the wrist. They will get years, quite possibly decades, of hard time and that anyone attempting to stop Joe Biden being sworn in as the next president will be treated as a domestic terrorist.

If this were a normal transition, Judge Garland would hold a joint news conference with Acting Attorney General Rosen where they expressed solidarity and assured the American people that the outgoing and the incoming administrations were closely coordinating to ensure America’s safety. This is not, however, a normal transition.

America is facing the greatest domestic terrorist threat in its history and the Department of Justice is rudderless. This can’t be allowed to continue. Merrick Garland won’t be the legal head of the Department of Justice until he is confirmed by the Senate and Joe Biden takes office. But, at least when it comes to moral leadership, he needs to start acting like the head of the Department of Justice today. Somebody has to.

Chris Truax

Chris Truax is an appellate lawyer in San Diego and the CEO of CertifiedVoter.com, the first system designed to deter foreign interference in American social media.