Thread by @Teri_Kanefield

(Thread) Merrick Garland and Rule of Law

npr.org/2022/03/10/108…
This morning, Garland said the J6 investigation won't end until everyone is held accountable. (h/t @NastyOldWomyn)

It's basically what he said on Jan. 5.

This thread is so I don't have to keep repeating myself.

I'll address what Snyder calls Internet Memes and what I've called "rage-inducing simplifications." What's that? See terikanefield.com/rage-inducing-…

Screenshots #1 and 2 are some of what he said on Jan 5.

Today he said a bit more. npr.org/2022/03/10/108…

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npr.org/2022/03/10/108……

He said this investigation is the most "urgent in the history of the DOJ" (but the DOJ is still doing lots of other things.) #1

He was basically asked whether he would "shy away" from something so explosive as charging Trump himself . . . #2

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He said: "We are not avoiding cases that are political or cases that are controversial or sensitive. What we are avoiding is making decisions on a political basis, on a partisan basis."

Remember what Barr did?

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He politicized the DOJ. He turned the DOJ into Trump's Strong Arm. He did Trump's bidding.

For me, that was one of the most chilling moments in the Trump era.

Garland says, "We will follow rule of law, not partisan politics."

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I get lots of versions of this: "These are unusual times. We can't play by the rules now."

The quickest way to end rule of law is for the DOJ to abandon "playbook."

The way you save rule of law is with rule of law.
You save democracy with more democracy, not less.

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Cynics and fascists say, "There is no fairness. Everyone cheats and disregards laws when it suits them." If everyone cheats, the person who wins is the best cheater.

This is why so many people embrace Trump even though they know he's a cheater.

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They say, "He's a cheater but he's OUR cheater, and our cheater is tougher than your cheaters."

If both sides abandon rule of law, then the cynics are correct. In that case, it doesn't matter who you vote for.

Both sides are equally bad.

See the problem?

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Several times each day, someone tells me a version "November elections are coming so we're in a super hurry and don't have time for rules."

People also tell me some version of, "XX was a prosecutor and he said XX and he should know better than you, so there."

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My answer to the "we are in a hurry because of the November elections" is here:

About prosecutors. Let's make some distinctions. There are Assistant Prosecutors and more experienced prosecutors. There are good prosecutors and bad prosecutors . . .

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Here's a story about a prosecutor who thought he had an airtight case:


When you read that story, keep in mind that he had all the evidence available to the government.

With J6, only the DOJ prosecutors know the strategy and what government has.

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Internet complaint: "Merrick Garland should at least tell us what is going on."

He does, constantly. He tells you this⤵️ And this: npr.org/2022/03/10/108…

Anything more jeopardizes the investigation and breaks the rules. If you want him to break the rules, go to Tweet #5.

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Remember when Comey talked about an ongoing investigation? We don't want Garland to be like that.

Talking point: "Why don't we see evidence that Garland is investigating Trump?"

Maybe hasn't gotten that far up the ladder yet.

So how far up the ladder have they gotten?

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Remember, they start at the bottom and work their way up. Initially, they charged things like vandalism.

Only recently, with the indictment of Rhodes has the DOJ begun charging seditious conspiracy, which is very serious. justice.gov/opa/pr/leader-…

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Seditious conspiracy is when you use force to try to overthrow the government and stuff like that: law.cornell.edu/uscode/text/18…

Last week, the DOJ got guilty plea from Joshua James, leader of the Alabama Oath Keepers, for seditious conspiracy.
justice.gov/opa/pr/leader-…

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Two things are notable about this guilty plea. One, it's a conviction. This is a lot better than an indictment, which is an accusation.

After an indictment, you have a trial and who knows what a jury (or judge) will do. It's all very uncertain.

A guilty plea is in the bag.

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Prosecutors prefer things in the bag. The other notable thing is that James is cooperating with prosecutors, and this includes testifying to a grand jury.

This ties directly to Roger Stone, who seems to be the next duck in line.

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What a coincidence! Just this morning, a piece I did for NBC about all the ties between Roger Stone and some of the folks recently indicted and how this spells trouble for Stone.

Think of the J6 perpetrators as lined up on a ladder.

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nbcnews.com/think/opinion/…

At the bottom are the suckers who got swept up in the moment, broke into the Capitol and didn't do much once they were there.

At the top are the people who strategized, 'Let's send an angry mob to intimidate Congress.'

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Ideally, the prosecutors want the people in the middle to plead guilty and turn over evidence about the people higher up.

You gotta be careful because some of these people have first amendment defenses.
forbes.com/sites/alisondu…
So for them, Garland needs more.

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Think how boring my explanation is.

How would it work for a TV show to have a wonky person come in and say, "We just have to wait."

For that matter, rule of law is boring.

Some people like the phrase 'rule of law' without understanding it means procedures and hurdles.

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Rule of law is an obstacle course.

It means defendants have the right to procedures. Everything takes longer.

"BUT WE WANT IT TO GO FASTER!"

Putin arrested and imprisoned a few thousand people overnight. (Okay, I'm being snide, but you get my point.)

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I'm afraid people are addicted to rage.

Fascism thrives on strong emotions. It looks like this =😡🔥 💣

It's us v. them! We battle our enemies!

It's all a show.
When news is about the show, the person who puts on the best show wins.

Rule of law looks like this =🤔

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Another talking point: "We need Trump prosecuted to keep him from running for office again."

Nothing stops a prosecuted person from running for office. The 14th Amendment would apply, but even if Trump is indicted now, a trial is a year away, plus appeals . . .

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The problem with "we need Trump prosecuted because . . ." is that people are looking to the criminal justice system to solve a political problem.

See my pinned tweet (transcript on my blog) for one reason the criminal justice system won't solve a political problem.

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This is getting long. I shouldn't have gotten the idea to address all of the Internet Memes in one thread.

There are several ways to respond to this (in addition to the responses I've given.)

This ⤵️begins with a faulty view of history . . .

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The idea is that there is some action we can take that will get rid of the "crazies" once and for all.

The idea seems to be that all was well until the crazies got a lot of power and now we need to nullify the threat . . .

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This tends to go with the idea that "We are in a crisis and things have never been this bad."

Nope. The crazies have been with us from the beginning and they've always had a lot of power.

They were in favor of slavery. They literally held power for hundreds of years.

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Then they were in favor of racial segregation.

It's only recently that we have moved toward a true multi-racial democracy, and the pushback has been intense.

We're still riding the backlash from the civil rights movement.

More here:
terikanefield.com/why-democrats-…

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Many of the internet memes come down to this:

The Democrats could end the threat of right-wing extremism once and for all if only they would DO that THING that will crater the threat of right-wing-authoritarians.

Someone last night told me I live in 'la la land" . . .

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To me 'la la land' is the idea that the Democrats have in their power to put an end to the threat of extremism.

I've published biographies of Thurgood Marshall, Susan B. Anthony, Barbara Johns, FDR, and others.

I learned that the fight never ends until we give up.

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We are. I'm also persuaded that the closer we move to a true multi-racial democracy, the more angry and desperate and crazy the people will get who don't want a multi-racial democracy.

It scares them. That's what "replacement theory" is about . . .

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Okay, I'll tackle this one. How about if I just list all the things wrong with it?

(1) I never said "Garland has it" or "just relax."

It's sort of insulting to my message. More on that in a bit.

(2) Nothing was handed on a "silver platter."

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What Mueller did was present evidence of crimes.

During his testimony before Congress, Mueller clarified that his team did not reach a determination as to whether the president committed a crime. nbcnews.com/politics/congr…

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I hate threads this long, but here I am.

"But it was obvious to all of us that Trump obstructed justice!" (Go back to Tweet # 10 and read the story."

About the "he refused to prosecute . . . "

Here's the really super annoying thing about prosecutors. . .

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They have a lot of power. They decide what to prosecute and what not to prosecute.

When a government is structured, an important question is: who decides who to prosecute?

In an autocracy, the autocrat decides.
In the era of mob rule (lynchings) the mob decides.

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What's funny here is that, as a defense lawyer, I rarely liked the decisions made by prosecutors. But I see Garland is doing it right.

One problem with democracy and democratic systems is that you don't always get your way.

That's why autocracy has so much appeal.

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I promise no results. I don't know whether Garland "has it" because:

🔹I don't know what the government knows
🔹I don't know the specifics of their strategy

Here's the thing: Neither does anyone else.

But "we have to wait and see" would be a dull television presentation.

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I just read criticism of Garland's statement ⤵️. A former prosecutor said, "That's not how aggressive prosecutors work."

I take that to mean, "I'd be handling this investigation differently and I'd be doing a better job of it."

Maybe. Maybe not . . .

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Garland has high-profile successes and impressive credentials, including circuit judge of the US Court of Appeals for D.C.

My gut: Aggressive isn't good. I dislike a show of "strength."

Careful and methodical better suits Rule of Law.

But . . . We have to wait and see.

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As long as I'm doing a comprehensive thread:

A reason the DOJ doesn't jump to indict the moment it has evidence of a crime if the investigation is ongoing and may turn up more evidence and more crimes:

A defendant has a right to see what the prosecutor has, so . . .

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. . . the defense lawyer waltzes in, files a motion and gets to see everything the prosecutor has.

WHAM other people up the chain still being investigated also find out.
lawshelf.com/shortvideoscon…

If you're working your way up, you don't want people to know what you've got.

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