Franklin Foer writes:

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 with 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. [Continue reading…]