Professor and John D. Feerick Research Chair Andrew Kent co-authored an article in Lawfare Blog discussing the criticism against Attorney General Merrick Garland and the actions he should take to counter it.
Attorney General Merrick Garland is taking a great deal of criticism these days.
He’s being attacked for not having indicted former President Trump, for not having brought cases faster against witnesses who have defied the Jan. 6 committee, and for not having moved more aggressively against political figures for their supposed involvement in the Jan. 6 insurrection.
These criticisms speak to genuine frustrations with the slow pace of department action. They are also based on two flawed assumptions.
The first is the assumption that the evidence and equities would support prosecutions and, consequently, that the absence of criminal cases reveals weakness or hypercaution on the Justice Department’s part. This may be the case—but it may not. The absence of prosecutions could also reflect inadequacies in the evidence needed to bring cases.
The second problem is the confusion of what has not happened with what has not happened yet. The Justice Department can be very busy without making a lot of noise. The fact that indictments have not materialized so far does not mean they won’t appear tomorrow—or the day after.
