Every so often, someone asks me who my favorite politicians to write about over the years have been. I always place Bill Richardson, the longtime congressman and former governor of New Mexico, near the top of my list. I once mentioned this to Richardson himself.
“How high on the list?” he immediately wanted to know. “Top 10? Top three? I get competitive, you know.”
Richardson died in his sleep on Friday, at age 75. I will miss covering this man, the two-term Democratic governor, seven-term congressman, United Nations ambassador, energy secretary, crisis diplomat, occasional mischief magnet, and freelance hostage negotiator who even holds the Guinness World Record for the politician who’s shaken the most hands—13,392—in an eight-hour period.
“Make sure you mention that Guinness World Record thing,” Richardson urged me the first time I wrote about him, in 2003. “The handshake record is important to me.”
Why? I asked. “Because it shows that I love politics,” he replied. “And I do love politics. I love to campaign. I love parades. I don’t believe I’m pretentious. I’m very earthy.”
But why was the fact that he loved politics important?
“Because I’m sick of all these politicians these days who are always trying to convince you that they are not really politicians,” Richardson went on. I had noticed this phenomenon as well, and it holds up: that the slickest and most unctuous people you encounter in politics are often the ones who spend the most energy trying to convince you they hate politics and are in fact “not professional politicians.”
“I don’t mind being called a ‘professional politician,’” Richardson added. “It’s better than being an amateur, right?”
Richardson was an original. Born to a Mexican mother and an American businessman, he spent much of his childhood in Mexico City and identified strongly as Latino. He served as chair of the Congressional Hispanic Caucus in the 1980s and was the only Latino governor in America during his two terms in Santa Fe. Richardson spoke often about how his dual ethnic and cultural identities placed him in advantageous and sometimes awkward positions—“between worlds” (which he’d use as the title of his 2005 memoir).
His identities also placed Richardson in big demand as probably the most prominent Latino elected official in the country at the time. He absolutely loved being in big demand, and was milking his coveted status as much as possible when I first encountered him. That September, all of the 2004 Democratic candidates for president—John Kerry, Howard Dean, John Edwards, etc.—were straining to pay respects to Richardson after a debate in Albuquerque.
I was working for the WashingtonPost Style section at the time, and I found Richardson’s full-frontal “love of the game” quite winning. He was over-the-top and unabashed about the enjoyment he derived from the parade of candidates coming before him. “It’s fun to get your ring kissed,” Richardson told me that night, though he might not have said ring.
We were walking into a post-debate reception for another candidate, Senator Joe Lieberman. Like most of the Democratic VIPs in Albuquerque that night, Lieberman was an old friend of Richardson’s; they’d worked together on the 1992 Democratic Party platform committee.
“I wore this to curry favor with you,” Lieberman told Richardson, pointing to a New Mexico pin on his jacket. “You also saw that I spoke a little Spanish in [the debate].”
“I thought that was Yiddish,” Richardson said. Lieberman then got everyone’s attention and offered a toast to El Jefe.
Richardson let me ride around with him in the back of his SUV while he tried to hit post-debate receptions for all of the candidates. I noted that he’d instructed the state police driver to keep going faster and faster on Interstate 40—the vehicle hit 110 miles an hour at one point. When I mentioned the triple-digit speed in my story, it caused a bit of a controversy in New Mexico. Ralph Nader made a stink. (“If he will do this with a reporter in the car,” Nader said, according to the Associated Press, “what will they do when there’s no reporter in the car?”)
The next time I saw Richardson, a few months later, he shook his head at me and tried to deny that the vehicle was going 110. I held my ground.
Richardson ran for president in 2008, but he quit after finishing fourth in both Iowa and New Hampshire. I had since moved on to The New York Times and used to run into him on the campaign circuit. A few weeks after he dropped out, I went down to Santa Fe to interview him about the lengths that the two remaining Democratic candidates—Barack Obama and Hillary Clinton—were going to in an attempt to win his endorsement. Another Bill Richardson primary! What could be more fun?
“Oh, the full-court press is on like you wouldn’t believe,” he told me. The “political anthropology” of this was quite interesting too, he added. “Barack is very precise,” like a “surgical bomb,” Richardson said. “The Clintons are more like a carpet bomb.” He relished my interest in the pursuit of him.
“I want to make it clear that I’m not annoyed by any of this,” Richardson said of the repeated overtures he was getting from the candidates and their various emissaries. I quoted him saying this in the Times, but not what I said in response to him in the moment: “No shit, governor.”
I’ll admit that the notion of a pol who loves the game seems quite at odds with the tenor of politics today. People now routinely toss out phrases like our democracy is at stake and existential threat to America, and it’s not necessarily overheated. Fun? Not so much.
But thinking about Richardson makes me nostalgic for campaigns and election nights that did not feel so much like political Russian roulette. Presidency or prison? Suspend the Constitution or preserve it? Let’s face it: Death threats, mug shots, insurrections, and white supremacists are supreme buzzkills.
Richardson made it clear to me that he’d loved running for president—it was one of the best times of his life, he said—and he missed the experience of it almost as soon as he got out. But what he really wanted was, you know, the job. “I would have been a good president,” he said in Santa Fe in 2008. “I still believe that. Please put that in there, okay?”
If nothing else, the Clinton-Obama courtship was a nice cushion for Richardson as he tried to ease back into life in the relative quiet of his governor’s office. It also, he said, might get him a gig in the next administration. Richardson was 60 at the time and said he envisioned “a few more chapters” for himself in public life. Richardson told me he would have loved to be someone’s running mate or secretary of state.
“I’m not pining for it, and if it doesn’t happen, I’ve had a great life,” he told me. “I’m at peace with myself.”
He wound up endorsing Obama, who, after he was elected, nominated Richardson to be his secretary of commerce—only to have Richardson withdraw over allegations of improper business dealings as governor (no charges were filed).
Richardson devoted the last stage of his career to his work as a troubleshooting diplomat and crisis negotiator. He would speak to thugs or warlords, drop into the most treacherous sectors of the globe—North Korea, Myanmar—if he thought it might help secure the release of a hostage. Among the many tributes to Richardson this past weekend from the highest levels (Joe Biden, Obama, the Clintons), I was struck most by the ones from some of the people who knew directly the ordeals he worked to end: the basketball star Brittney Griner and the Washington Post journalist Jason Rezaian, who called Richardson “a giant—the first giant—in American hostage diplomacy.”
The last time I saw Richardson was a few years ago, in the pre-pandemic Donald Trump years—maybe 2018 or 2019. We had breakfast at the Hay-Adams hotel, near the White House. I remember asking him what he called himself those days, what he considered his current job title to be.
Richardson shrugged. “‘Humanitarian,’ maybe?” he said. But he worried that it sounded pretentious.
The Republican Party has had no better friend than Nassau County in the past few years.
Of America’s largest counties, few have turned more sharply toward the GOP than New York City’s neighbor to the east. This collection of Long Island suburbs swept Democrats out of local office in 2021, and last fall, Nassau County voted resoundingly Republican in New York’s gubernatorial race. Most important for the national GOP, the county helped elect three Republicans to Congress, including two candidates who flipped Democratic seats in districts that President Joe Biden had carried in 2020.
Representative George Santos was one of those recent winners, and now Nassau County Republicans are worried that his abrupt fall from grace will cost the GOP far more than the seat that his lies helped the party pick up in November. They want Santos to step down, even though that means his seat would be vacant until a special election later this year, which the Democrats would aggressively contest. Local Republicans are flummoxed that national party leaders, starting with House Speaker Kevin McCarthy, haven’t joined their united call for Santos to resign. And they see McCarthy’s continued tolerance of Santos as an attempt to hold on to a Republican vote in the near term without enough consideration for whether he’d lose it—and cause Republicans to lose many others—in the longer term.
“It’s the right thing to do morally, ethically, and politically,” former Representative Peter King, a Long Island Republican who represented the district next to Santos’s in the House for 28 years, told me about trying to oust Santos. “If you want to keep controlling the Congress, you can’t just have the short-sighted view that you need his vote next week or next month. You’re gonna lose all the votes in two years when you’re no longer in the majority.”
With 2024 in mind, and as the list of Santos’s biographical fabrications grows (seemingly bytheday), Nassau County’s GOP machine has treated the congressman-for-now as a boil to be lanced.
“As far as I’m concerned, he’s nonexistent. I will not deal with him. I will not deal with his office,” Bruce Blakeman, the Republican who was elected Nassau County executive in 2021, told me. Last week, Blakeman joined a group of local GOP leaders, including county Republican Party Chairman Joseph Cairo and Representative Anthony Garbarino, in demanding that Santos resign.
Yet for the moment, the political imperatives of Long Island Republicans no longer align with those of McCarthy, who plainly cannot afford to lose Santos’s vote with such a narrow margin in the House. Santos backed McCarthy in all 15 ballots for speaker earlier this month, and McCarthy’s allies rewarded him with a pair of committee assignments earlier this week. The new speaker said that Santos has “a long way to go to earn trust” but has made no move to sanction him.
“The voters of his district have elected him. He is seated. He is part of the Republican conference,” McCarthy told reporters last week.
Democrats have already filed a complaint about Santos with the House Ethics Committee, and he is under investigation by federal and local prosecutors in New York who are reportedly looking into whether he committed financial crimes or violated federal campaign-disclosure laws.
Santos has defied calls to resign, and McCarthy might need his vote even more should another House Republican, Representative Greg Steube of Florida, miss an extended period of time after he sustained serious injuries from a 25-foot fall off a ladder earlier this week.
McCarthy’s office did not respond to requests for comment. The National Republican Congressional Committee, which traditionally backs GOP incumbents, echoed McCarthy’s ambivalence toward Santos. “Voters in New York will have the final say on who represents them,” NRCC spokesperson Jack Pandol told me by email. “Rep. Santos will have to earn back their trust as he serves them in Congress.”
King and others in Nassau County are trying to impress upon McCarthy that the longer he stands by Santos, the more damage he will do to a Republican brand that has been on the rise. “The only reason Kevin McCarthy has the majority is because of the very close marginal seats that Republicans won in New York,” King said. “We can lose all of them in the next election.”
Even if McCarthy wanted to force Santos out, however, there’s not much he can do. He could try to expel him, but that would take the support of two-thirds of the House, and members of both parties might be leery of setting precedent by kicking out a member who has not been charged, much less convicted, of a crime. King suggested that McCarthy insist on an expedited investigation by the Ethics Committee—the panel’s probes tend to drag on for months—but there’s little history of that either.
Election to the House “is an unshakable contract for two years,” Doug Heye, a former House GOP leadership aide who has advised lawmakers ensnarled in ethics investigations, told me. “Unless two-thirds of the House say, ‘Get out of here,’ or you give it up yourself, nothing happens.”
Santos has almost no incentive to leave of his own accord anytime soon, especially now that Long Island Republicans have all but foreclosed the possibility of his winning renomination to his seat. “He’s not going to have a career. He’s not going to have a public life, and he’s going to be ostracized in his own community,” Blakeman told me. Santos was wealthy enough to lend his campaign $700,000. But his present personal finances are, like so much else about his life, a mystery, so he may need the paychecks that come with a $174,000 annual salary. And his seat could be a crucial bit of leverage in potential negotiations with prosecutors, Heye noted; resigning his seat, in that scenario, could help him avoid other penalties, including prison time.
As his struggle just to get the speakership demonstrated, McCarthy doesn’t exactly have an ironclad grip on his conference. The Republicans from Nassau County seem to realize that the new speaker has limited sway over Santos. But McCarthy’s decision to protect and even validate Santos’s standing inside Congress is at odds with a party clinging both to its House majority and to its precarious stronghold on Long Island. “I’ve dealt with people with all sorts of issues,” Blakeman told me,” and enabling them is not a good thing.”
As an appellate judge, Merrick Garland was known for constructing narrow decisions that achieved consensus without creating extraneous controversy. As a government attorney, he was known for his zealous adherence to the letter of the law. As a person, he is a smaller-than-life figure, a dry conversationalist, studious listener, something close to the opposite of a raconteur. As a driver, his friends say, he is maddeningly slow and almost comically fastidious.
And as the nation’s chief law-enforcement officer, he is a hyper-prudential institutionalist who would like nothing more than to restore—quietly and deliberately—the Justice Department’s reputation for probity, process, and apolitical dispassion. Which is why it is so difficult for me to imagine him delighting in the choice he now faces: whether to become the first attorney general in American history to indict a former president.
But this is what I believe he is preparing himself to do.
I have been observing Garland closely for months. I’ve talked to his closest friends and most loyal former clerks and deputies. I’ve carefully studied his record. I’ve interviewed Garland himself. And I’ve reached the conclusion that his devotion to procedure, his belief in the rule of law, and in particular his reverence for the duties, responsibilities, and traditions of the U.S. Department of Justice will cause him to make the most monumental decision an attorney general can make.
Let me be absolutely clear: Garland did not tell me he was going to indict Donald Trump. In fact, he did not tip his hand to me in any way—he is far too cautious to signal his intentions to even his closest friends, much less a reporter. Nor did his top aides suggest the announcement of an indictment. When his department says that it doesn’t discuss ongoing cases, it means it—at least in this case.
Before I lay out the reasons I believe I am correct in this assessment, I want to discuss why it is entirely possible I am not. The main reason to disbelieve the argument that Garland is preparing to indict is simple: To bring criminal charges against a former president from an opposing political party would be the ultimate test of a system that aspires to impartiality, and Garland, by disposition, is repelled by drama, and doesn’t believe the department should be subjected to unnecessary stress tests. This unprecedented act would inevitably be used to justify a cycle of reprisals, and risks turning the Justice Department into an instrument of never-ending political warfare.
And an indictment, of course, would merely be the first step—a prelude to a trial unlike any this country has ever seen. The defendant wouldn’t just be an ex-president; in all likelihood, he’d be a candidate actively campaigning to return to the White House. Fairness dictates that the system regard Trump as it does every other defendant. But doing so would lead to the impression that he’s being deliberately hamstrung—and humiliated—by his political rivals.
Garland is surely aware that this essential problem would be evident at the first hearing. If the Justice Department is intent on proving that nobody is above the law, it could impose the same constraints on Trump that it would on any criminal defendant accused of serious crimes, including limiting his travel. Such a restriction would deprive Trump of one of his most important political advantages: his ability to whip up his followers at far-flung rallies.
In any event, once the trial began, Trump would be stuck in court, likely in Florida (if he’s charged in connection with the Mar-a-Lago documents matter) or in Washington, D.C. (if he’s charged for his involvement in the events of January 6). The site of a Washington trial would be the Prettyman Courthouse, on Constitution Avenue, just a short walk from the Capitol. This fact terrified the former prosecutors and other experts I talked with about how the trial might play out. Right-wing politicians, including Trump himself, have intimated violence if he is indicted.
Trump would of course attempt to make the proceedings a carnival of grievance, a venue for broadcasting conspiracy theories about his enemies. The trial could thus supply a climactic flash point for an era of political violence. Like the Capitol on January 6, the courthouse could become a magnet for paramilitaries. With protesters and counterprotesters descending on the same locale, the occasion would tempt street warfare.
The prospect of such a spectacle fills Merrick Garland with dread, his friends say. Indeed, for much of his tenure he’s been attacked by critics who claim he lacks the fortitude to meet the moment, or to take on an adversary like Trump. Members of the House committee charged with examining the events of January 6 have publicly taunted Garland for moving tentatively when compared to their own aggressive and impeccably stage-managed hearings. Representative Adam Schiff has complained, “I think there’s a real desire on the part of the attorney general, for the most part, not to look backward.” Privately, even President Joe Biden has grumbled about the plodding pace of Garland’s investigations.
But I believe, if the evidence of wrongdoing is as convincing as it seems, he is going to indict Trump anyway.
Over the course of my reporting, I came to appreciate that the qualities that strike Garland’s critics as liabilities would make him uniquely suited to overseeing Trump’s prosecution. The fact that he is strangely out of step with the times—that he is one of the few Americans in public life who don’t channel or perform political anger—equips him to craft the strongest, most fair-minded case, a case that a neutral observer would regard as legitimate.
United States v. Donald Trump would be about more than punishing crimes—whether inciting an insurrection, scheming to undermine an election, or absconding with classified documents. An indictment would be a signal to Trump, as well as to would-be imitators, that no one is above the law. This is the principle that has animated Garland’s career, which began as the Justice Department was attempting to reassert its independence, and legitimacy, after the ugly meddling of the Nixon years. If Garland has at times seemed daunted by the historic nature of the moment, that is at least in part because he appreciates how closely his next move will be studied, and the role it will play in heading off—or not—the next catastrophe.
I have also come to see that the Garland of 2022 is not the same man who was sworn into office as attorney general in March of the previous year. At the age of 69, his temperament is firmly fixed, but a year and a half on the job has transformed him.
It was just a few months ago that I saw a different version of the attorney general begin to emerge. While his investigation of January 6 continued at its slow pace, his sparring with Trump over the documents at Mar-a-Lago escalated quickly. The former president is no longer a figure on television, but his adversary in court. Garland approached him with an aggression that suggested he was prepared to do the very thing that critics said he didn’t have the guts to do.
The Merrick Garland who took over the Justice Department may have hoped he could restore its reputation without confronting Trump, or dragging him to a courtroom. But the nation has changed in the intervening months, and so has he.
President Barack Obama’s announcement for his Supreme Court nomination is shown on a TV in an empty Senate Radio TV studio on March 16, 2016, on Capitol Hill, in Washington, D.C. (Alex Wong / Getty)
Before he became attorney general, Merrick Garland’s life was defined by a job he has never held.
Twice, Barack Obama considered lifting him from the D.C. Circuit onto the Supreme Court, and twice Obama passed him over. After those failed attempts to move beyond the short list, Garland seemed to age out of the possibility, past the point where the actuarial tables suggest that an appointment is a worthwhile investment. Then, in 2016, Antonin Scalia died; Garland got his nomination after all—only to see it scuttled in the Senate by the obstructionist tactics of Mitch McConnell.
When Garland returned to the Court of Appeals after his nomination was blocked, he was greeted with an ovation from his colleagues. No doubt it was heartwarming, but the truth was that he was returning to an old routine after having been taunted with the job of his dreams. It would have only been human for his mind to ponder a fresh start.
In the fall of 2020, with polls showing Joe Biden primed to defeat Donald Trump, friends began asking, Would you ever want to be attorney general?
When Garland’s name showed up on the list of Biden’s potential AGs, it was fair to assume that he hoped the job would nudge the Supreme Court debacle out of the first paragraph of his obituary. But Garland told friends that he wanted to return to the Justice Department, where he’d worked as a young lawyer and first found his sense of professional purpose, to restore an institution that he revered. It had been damaged by a succession of Trump appointees, who carried out the policy of separating migrant children from their parents, distorted the findings of Robert Mueller’s investigation, and allegedly brought cases in order to settle the president’s political scores.
As Garland prepared to take the job, he often sounded nostalgic for his first stint at DOJ, in the final years of the Carter administration, when he worked as a special assistant to Attorney General Benjamin Civiletti. Nobody thinks of the late ’70s as the height of idealism, but that’s how Garland remembers the time.
In the aftermath of Watergate, he sat by Civiletti’s side as he continued the work of reforming the Justice Department: writing new rules and procedures to prevent another president from ever abusing the institution. They were preserving the rule of law by bubble-wrapping it in norms, so that it would be thoroughly insulated from political pressure.
This June, I visited Garland in his wood-paneled office, one of the cozier rooms in DOJ’s cavernous building. He wore a navy suit that looked as if it had been purchased at Brooks Brothers in 1985. A tray of coffee with demitasses was laid out on a coffee table, but he sipped from a mug.
As Garland spoke about his approach to his job, he asked an aide to pass him a copy of a tattered blue book that was sitting on a side table, Principles of Federal Prosecution, published during his time with Civiletti. He kept extolling the neutrality of the department, how it should never favor friends or penalize foes, how it should only bring cases that persuade juries and survive appeals. “What I’m saying isn’t novel,” he said. “It’s all in here.”
Thumbing through the document, he seemed briefly distracted. I asked him if he’d had anything to do with its publication. “I helped edit it,” he said, and then wistfully recalled his mentors in the department who oversaw its production. It struck me that Garland isn’t just by-the-book. In some profound sense, he is the book.
This unbending fidelity to rules and norms has often looked impotent in the face of the democratic emergency that is Donald Trump. In his quest to avoid the taint of politics, Garland allowed certain Trump-era policies to remain in place. He ordered the DOJ to continue defending Trump against a defamation lawsuit filed by E. Jean Carroll, a writer who accused him of raping her. He has permitted the Special Prosecutor John Durham’s investigation of the origins of Russiagate to persist, despite a raft of Democrats clamoring for him to shut it down. (I should note here that Durham mentioned my reporting on Trump and Russia in court filings, and his lawyers asked witnesses about it in his prosecution of a Clinton campaign lawyer, whom a jury acquitted.) Those flash points created an impression of passivity; instead of rushing to confront the legacy of Trumpism, he seemed to be meekly deferring to it.
It is not difficult to see why anti-Trump partisans could grow frustrated with Garland’s obdurate commitment to the traditions of the department when Trump is so intent on trampling them. His faith in them feels antiquated—and detached from the Democratic Party’s broad reconsideration of norms that were once seen as pillars of the American system. Not so long ago, expanding the number of justices on the Supreme Court or eliminating the filibuster seemed like subversive thought experiments. Now they are touted as necessities for preserving majoritarian politics.
But the post-Watergate reforms that Garland wants to defend weren’t aimed at abstract threats. They emerged as responses to very real abuse committed within living memory. And they arguably did an effective job at blunting Donald Trump’s desire to turn the Justice Department into his plaything, even if they couldn’t prevent every transgression. Norms held and prevented nightmare scenarios from unfolding.
These norms may not hold the next time, but that doesn’t obviate their ethical power. No matter how much one fears Trump, the prosecution of a former president can’t be undertaken lightly. The expectation that political enemies will be treated fairly is the basis for the legitimacy of the entire legal system. That’s why Garland’s hand-wringing and fussiness matter. Any indictment he brings against Trump will have survived his scrutiny, which means that it will have cleared a high bar.
Deputy Attorney General Jamie Gorelick takes a meeting with Amy Jeffries (left), counsel to the DAG, and Merrick Garland (right), principal associate DAG, in her office at the Justice Department, in September 1995. (Bill O’Leary / The Washington Post / Getty)
When Garland talks about how he handles complex, emotionally fraught investigations, there’s a historical antecedent that he likes to cite as his formative experience. On the morning of April 19, 1995, the Department of Justice’s leadership learned that a bomb had destroyed much of a massive federal office building in Oklahoma City, ripping off its facade and killing 168 people, including 19 children in the building’s day-care center.
At the time, Garland held a job known as the PADAG, or the principal associate deputy attorney general. It’s a mystifying title, but one of the most prized offices in the department: It afforded him a seat in the attorney general’s morning meeting and access to DOJ’s most closely held secrets. Garland used his privileged position to ask if he could travel to Oklahoma City to oversee the investigation.
Before Garland left, Attorney General Janet Reno pulled him aside. Of all things, she wanted to talk about O. J. Simpson. The football star’s trial was going to be running on a split screen alongside the Oklahoma City investigation. Everything the public was about to witness in a Los Angeles courtroom would make the justice system look like a tawdry joke. She told Garland that his job was to show how the legal system could be the antithesis of that circus.
“I want you to be meticulous,” she told him. “I don’t want to have any chance of losing a conviction. I want this to be picture perfect, so that the public understands what justice is.”
The bombing case triggered a strong emotional reaction across America, particularly those who feared the emergence of right-wing militias. Although much more straightforward than the chaotic events of January 6, the crime ignited a similarly intense desire to quickly punish the perpetrators. But Garland vowed to Reno that he would take the long way around.
Paying strict attention to procedure came naturally to Garland, even when the FBI seemed inclined to take shortcuts. He ordered agents to obtain warrants and subpoenas from courts even when they weren’t unambiguously necessary. In his quest for immaculate justice, his investigators conducted 28,000 interviews.
These decisions arguably made the prosecution’s case harder and certainly delayed the gratification of a conviction. But they also guarded against humiliating slipups that might have provided the basis for an appeal. In the end, Timothy McVeigh’s attempt to overturn his conviction failed and he was executed in 2001. His co-conspirator Terry Nichols was sentenced to life, a sentence that an Appeals court affirmed.
Garland has taken a similarly meticulous approach to Trump. Rather than starting with the offenses of the president himself, the department has devoted its resources to tediously building cases against every gym teacher and accountant who breached the Capitol on January 6, some 900 indictments in total. The volume of cases has risked overtaxing prosecutors—and pushing back the work of building more-complicated cases against Trump’s inner circle.
But what looks like donkeywork is a necessary step in a formulaic approach, a set of prescribed practices that have their own embedded wisdom. As Garland explains it, the department has no choice but to begin with the most “overt crimes,” and slowly build from there. To start with Trump would have reeked of politics—and it would have been bad practice, forgoing all the witnesses and cellphone data collected by starting at the bottom.
By focusing on Trump, Garland’s critics tend to underestimate the importance of the other arms of the January 6 prosecutions. The Justice Department has made an example of the foot soldiers of the insurrection, and has thus deflated attendance at every subsequent “Stop the Steal” rally. Evidence supplied by the minnows who invaded the Capitol helped the Justice Department indict leaders of the Oath Keepers (Elmer Stewart Rhodes) and Proud Boys (Henry “Enrique” Tarrio) on charges of seditious conspiracy, the most meaningful steps that the government has taken to dismantle the nation’s right-wing paramilitaries. (Both men have pleaded not guilty.)
Based on subpoenas and the witnesses seen exiting the grand jury, the department is clearly moving up the ladder, getting ever closer to Trump’s inner circle and to Trump himself. But there comes a moment when the rule book that Garland reveres ceases to provide such clear guidance. That’s the juncture that allows for prosecutorial discretion. In the case of Donald Trump, the prosecutor is Merrick Garland and discretion would allow him to decide that an indictment is simply not worth the social cost, or that the case is strong but not strong enough. Garland’s critics fret that when confronted with this moment, his penchant for caution will take hold.
Over the course of his career, institutions were good to Merrick Garland—and he was good to institutions. He was a true believer in the American system. That’s why he struggled to come to terms with the reality of Mitch McConnell.
For 293 days after Obama announced his selection to fill Scalia’s seat, Garland was trapped in limbo, waiting for Senate Republicans to provide him a fair hearing. The whole world knew that they never would; Garland remained patient. One of his old teachers from Harvard Law School, Laurence Tribe, told me, “What was heartbreaking was to see that the system really wasn’t as good as he hoped it was.”
The human response to McConnell’s brazen tactics was rage. Garland’s wife and daughters certainly channeled that emotion, as did his friends and former clerks. The people around Garland couldn’t contain their fury, but he did. When friends would call to vent, he would try to comfort them, to tamp down their ire. “Don’t feel too sorry for me,” he told them. “I’ve had a great run. Don’t worry.”
Such placidity wasn’t anomalous. He was always the calm one, his friend Jamie Gorelick told me. Ever since college, he had counseled her to not let emotions roil her. Back then, she was enraged that Harvard gave free football tickets to men, not women. After a contentious meeting where she railed against the injustice, he took her aside: “You’re right to be upset, but you shouldn’t be this upset. Over time, this will get fixed.” Gorelick valued his circumspection so highly that she hired him to serve as her deputy in the Clinton Justice Department. Even then, his advice was the same. He encouraged her to put angry letters she wrote in a drawer, until she restored her sense of equilibrium.
This tendency could be described as repression. The theologian Reinhold Niebuhr had another name for it. He called it the “spiritual discipline against resentment,” a phrase from his theory of political persuasion. He urged victims of injustice to resist the self-defeating instinct to righteously trumpet their own victimhood. That’s not a personal credo for Garland, or anything like it. But with his preternatural self-control and his sense of rectitude, he seems to regard anger, especially on his own behalf, as a dangerous emotion.
This can make him seem out of step with the zeitgeist, which is defined by rage. On January 7, 2021, when Joe Biden unveiled him as his nominee, he seemed strangely detached from the depredations of the previous day, which he referred to only once, as “yesterday’s events in Washington.” He argued that the insurrection showed that “the rule of law is not just some lawyer’s turn of phrase.” Even accounting for Garland’s tendency to overthink his choice of words, his conclusion felt like a massive underreaction.
With the investigation of Trump, the legitimacy of the judicial system is at risk. Of course, the MAGA set will never regard an indictment of their leader as anything other than a sham. But the perceptions of the rest of the country matter too. And it’s important that, if DOJ moves forward with an indictment, the public views it as the product of a scrupulous examination of facts, not the impulse for revenge. Indicting the candidate of the opposing party, if it occurs, should feel reluctant, as if there’s no other choice.
The attorney-general nominee Merrick Garland is sworn in during his confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., on February 22, 2021. (Al Drago / The New York Times / Redux)
It’s hard not to think of Garland as a character from another time. When I suggested this to him, he protested, jokingly (I think), citing a marker of cool highly significant to males in their 60s. “You know, I was there at the Bruce Springsteen concert in 1974, the one Jon Landau wrote about in his famous column in TheReal Paper.‘I’ve seen the future of rock and roll.’”
When he was on the bench, Garland would occasionally orient new clerks to his idiosyncrasies by playing a song by the band Vampire Weekend which contains the refrain, “Who gives a fuck about an Oxford comma?” It was amusing because the band was so distant from his range of expected cultural references, and because the strait-laced attorney general would never utter that sentence himself. It was also funny because Garland does care about punctuation, deeply.
Garland likes everything in its place. When, as a judge, he asked his clerks to prepare reading material, they would comb through it with a ruler in hand. The margins needed to be just so, with space for them to draw lines next to matters of import. A single line drawn parallel meant the clerks had material worthy of his attention; a triple line signaled the crux of the argument. When he found methods that worked, he clung to them. He may have been the last American to use WordPerfect.
Garland took office as attorney general with old-fashioned ideas about what was possible. He told his aides that he hoped he might help lower the temperature in the nation. He believed that he could use the department to restore a measure of civility that seemed to slip away during the Trump years.
One of the exhilarations of the new job was the sense of agency it offered. As a judge, he couldn’t pick and choose the matters that came across his desk. The docket was the docket. Now he could get exercised about an article in the morning newspaper, walk into his 9 a.m. meeting with deputies, and then insist that the department do something about it.
Every day, Garland kept encountering stories about appalling instances of harassment, a national epidemic of rudeness and rage. Flight attendants risked physical assault for asking passengers to wear masks. School-board officials received death threats. Police officers were harangued for doing their job.
Garland wanted to make an example of such behavior. The department began to aggressively prosecute illegal threats of violence, seeking stiff penalties for the sake of deterrence. But to his dismay, these efforts proved ineffective. No matter how many cases he brought, the DOJ couldn’t staunch the flood of invective. There was something profoundly wrong with the national culture, a dyspepsia that undermined the possibilities for collective coexistence and healthy democratic practice.
This year, as he came to understand the limitations of the job—all the broken facets of American life that the department is incapable of repairing—he began to appreciate the depths of the nation’s crisis. His public comments began to betray a sense of alarm. In May, he returned to Harvard to deliver a commencement address, issuing a grim report on the health of democracy. The historic metaphor he used to capture the urgency of the moment was the Justice Department’s founding in 1870, when its task was crushing the nascent Ku Klux Klan. Although the speech had grace notes of hope—the rousing calls to service that are de rigueur for the genre—it was hard to avoid its underlying pessimism, his warning that “there may be worse to come.”
At one point during my June visit, I called Garland an “institutionalist,” which I thought was an unobjectionable description of his political temperament. Upon hearing this, he turned to his aides, “I don’t think I’ve ever used the word to describe myself.” If I wanted, they would check, he said. But he was certain he had never uttered it.
I was surprised he would resist the term. I think he wanted me to understand that he is alive to the perils facing democracy—and isn’t naive about what it will take to defeat them. Norms alone are not enough to stop a determined authoritarian. It wasn’t quite a reversal in his thinking; radicalizing Merrick Garland would be impossible. But it was an evolution. His faith in institutions had begun to wobble.
With his optimism bruised, and his heightened sensitivity to the imminent threats to democracy, he’s shown a greater appetite for confrontation. There is no sharper example of this than his willingness to spar with Trump over the sensitive documents stashed at Mar-a-Lago. Searching the home of a former president is unprecedented. The warrant was executed knowing that Trump would demagogue the event—and that he might even encourage his supporters to respond violently.
With Trump, Garland has lately shown a pugnacity that few had previously associated with him. When Trump began to assail the search of Mar-a-Lago, Garland asked the court to unseal the inventory of seized documents, essentially calling out the ex-president’s lies. Rather than passively watching attacks on FBI agents, whom Trump scurrilously accused of planting evidence, Garland passionately backed the bureau. As Trump’s lawyers have tried to use a sympathetic judge to slow down the department’s investigation, Garland’s lawyers have responded with bluntly dismissive briefs, composed without the least hint of deference. (“Plaintiff again implies that he could have declassified the records before leaving office. As before, however, Plaintiff conspicuously fails to represent, much less show, that he actually took that step.”)
The filings can be read as a serialized narrative, with each installment adding fresh details about Trump’s mishandling of documents and his misleading of investigators. On August 31, the department tucked a photo into a brief, showing classified documents arrayed across a Mar-a-Lago carpet. This was both a faithful cataloging of evidence and sly gamesmanship. Garland permitted the department to release an image sure to implant itself in the public’s mind and define the news cycle. Lawfaredescribed the entirety of that filing as “a show of force.”
In the Mar-a-Lago case, Garland is facing Trump in court for the first time. He arguably dillydallied on his way to the fight. But now that he’s entered it, he’s battling as if the reputation of the DOJ depends on winning it. During our interview, Garland reminded me that he was once a prosecutor himself. The unstated implication was that he knows what it takes to prevail.
There’s a date on the calendar when excessive meticulousness potentially precludes holding Trump to account. On January 20, 2025, Merrick Garland might not have a job. His post could be occupied by an avatar of the hard right. And any plausible Republican president will drop the case against Donald Trump on their first day in office.
The deadline for indicting Trump is actually much sooner than the next Inauguration Day. According to most prosecutors, a judge would give Trump nearly a year to prepare for trial, maybe a bit longer. That’s not special treatment; it’s just how courts schedule big cases.
If Trump is indicted for his role on January 6, he might get even more time than that, given the volume of evidence that the Justice Department would pass along in discovery. And if the evidence includes classified documents, the court will need to sort out how to handle that, another source of delay.
Depending on the charges, a trial itself could take another week—or as long as six months. That means Garland has until the late spring of 2023 to bring an indictment that has a chance of culminating in a jury verdict before the change of administration.
The excruciating conundrum that Garland faces is also a liberating one. He can’t win politically. He will either antagonize the right or disappoint the left. Whatever he decides, he will become deeply unpopular. He will unavoidably damage the reputation of the institution he loves so dearly with a significant portion of the populace.
Faced with so unpalatable a choice, he doesn’t really have one. Because he can’t avoid tearing America further apart, he’ll decide based on the evidence—and on whether that evidence can persuade a jury. As someone who has an almost metaphysical belief in the rule book, he can allow himself to apply his canonical texts.
That’s what he’s tried to emphatically explain over the past months. Every time he’s asked about the former president, he responds, “No one is above the law.” He clearly gets frustrated that his answer fails to satisfy his doubters. I believe that his indictment of Trump will prove that he means it.
