It’s Crunch Time for Merrick Garland By David Corn October 16, 2021 
Attorney General Merrick Garland speaks at an event for the National Law Enforcement Officers Memorial Fund at the National Mall on October 14, 2021. Alex Brandon/AP On Thursday, Rep. Bennie Thompson (D-Miss.) announced a bold move: The House committee investigating the January 6 insurrectionist riot, which he chairs, will next week recommend that the Justice Department pursue a criminal contempt case against Steve Bannon, the once-indicted-and-pardoned former Trump adviser, for his refusal to cooperate with the committee. Bannon, who encouraged pro-Trump extremists to descend upon Washington the day of the Capitol assault, is one of several witnesses the committee has subpoenaed whom Donald Trump has asked not to comply with the inquiry. Last week, Bannon told the committee to take its subpoena and shove it—though he has no legal standing to do so.
Bannon is hiding behind the notion of executive privilege, but Trump is no longer the executive, and Bannon was not a White House official at the time of the Trump-incited terrorist raid. And his defiance is creating a legal and constitutional showdown. If Congress cannot enforce a subpoena in a legitimate investigation, its ability to conduct oversight of the executive branch (or anything else) will be radically diminished. Presumably, after the committee takes its vote on Tuesday, the full House will move to send this criminal referral to the Justice Department. And that’s when this gets interesting and less predictable, for the big question is, will Attorney General Merrick Garland take the case?
A decision from the Biden Justice Department to prosecute Trump’s former strategic genius would be a nuclear blast in American politics. Bannon will howl he’s a martyr (and probably raise millions of dollars). Trump will exploit this to further trigger his cultlike followers. Much noise will be generated, much oxygen sucked up. As justified as the prosecution would be, it’s easy to envision Garland—and the White House—preferring to avoid this battle. President Joe Biden’s priority of the moment is to pass legislation, including the bipartisan (as of now) infrastructure bill. And Garland is a fellow known for his moderate temperament who might be inclined to sidestep a battle royale. (His Justice Department, though, has played tough by denying Trump’s request to use executive privilege to block the turning over of certain documents to the 1/6 committee.)
Will Garland have much choice? It’s clear that this congressional investigation of an important topic—a violent attempt to overturn an election—cannot chase down all leads and probe all angles without deploying subpoena power. Garland has sworn to protect the Constitution. What could be more vital toward that end than scrutinizing an effort to subvert the Constitution by attacking an election and preventing the peaceful transition of power? Yet…one can see Garland having little taste for such a confrontation. (It’s been decades since the feds have prosecuted a criminal contempt of Congress case. I’m not sure this was the last one, but after 10 film writers and directors in 1947 refused to testify before the House Un-American Activities Committee, they were cited for contempt, put on trial, convicted, and sentenced to up to a year in jail and a $1,000 fine. The case of the Hollywood 10 led to the notorious Hollywood blacklist.)
The Bannon situation brings to mind what occurred when Barack Obama, with Biden by his side, entered the White House in early 2009. There were cries for investigations and prosecutions of the Bush-Cheney gang for assorted acts of corruption and wrongdoing, including the use of torture. Obama had no interest in any of that. The economy was free-falling. He wanted to focus on its rescue and other policy matters, such as health care. He saw no gain in fighting over the past, especially because that would intensify the partisan divide he sought to bridge.
In fact, in 2010, I uncovered a State Department cable from the previous year that showed that during its first months in office, the Obama administration tried to protect Bush officials who faced criminal investigation overseas for their actions related to the brutal and arguably illegal interrogations of detained terrorist suspects. In March 2009, a Spanish human rights group had requested that Spain’s National Court indict six former Bush officials for creating a legal framework that permitted torture. (The six possible targets were former Attorney General Alberto Gonzales; David Addington, former chief of staff and legal adviser to Vice President Dick Cheney; William Haynes, the Pentagon’s former general counsel; Douglas Feith, former undersecretary of defense for policy; Jay Bybee, former head of the Justice Department’s Office of Legal Counsel; and John Yoo, a former official in the Office of Legal Counsel.) The cable noted that officials of the Obama State Department and two Republican senators were working together behind the scenes to pressure the Spanish government to drop this investigation. Eventually, the case went away.
Garland faces a tougher decision. The Bannon subpoena fight is not a brawl over what to do about a past action. It concerns a current effort on Trump and Bannon’s part to thwart an ongoing and essential congressional investigation of a serious attempt to sabotage American democracy. Can Garland take a powder on this? This will be a defining moment for him and the Biden administration.
Meanwhile, there is another possible course of action for Congress regarding Bannon and others who don’t comply with congressional subpoenas. In 1821, the Supreme Court ruled Congress has "inherent authority" to arrest and detain recalcitrant witnesses on its own. In theory, the House could imprison Bannon, should he continue to refuse to cooperate. That would be a far more dramatic step than a Justice Department prosecution and, no doubt, spark an immense political conflagration. It’s unclear if the full House Democratic caucus would back such a measure. But this does mean that if Garland punts, the House Democrats would confront their own crunch time, as they decide whether to lock him up.
Got any comments on the above story—or anything else? Email me at thisland@motherjones.com. Bannon, QAnon, and the Virginia Governor Race Speaking of Bannon, a few days ago, he appeared at a rally in Virginia to whip up Republican support for Glenn Youngkin, the GOP candidate running against Democrat Terry McAuliffe in the governor’s race. He shared the stage with a prominent QAnon backer from Arizona, a state representative named Mark Finchem. This event illustrated once again the coziness between the Republican Party and the bizarro paranoid far right. I wrote about it here. Dumbass Comment of the Week Shortly after the January 6 riot, Nikki Haley, the former UN ambassador, onetime South Carolina governor, and likely future GOP presidential candidate, had this to say about Donald Trump: “He went down a path he shouldn’t have, and we shouldn’t have followed him, and we shouldn’t have listened to him. And we can’t let that ever happen again.” And to escape blame for having supported such a monster, she said, “The person that I worked with is not the person that I have watched since the election. Never did I think he would spiral out like this...I don’t feel like I know who he is anymore.” Two months later—after it was obvious the Republican Party was not leaving the Trump cult—Haley sang a different tune, stating she would support Trump, should he try to regain the White House in 2024. Really? Put a man who could spin out of control in the White House and again place his finger on the nuclear button? And now Haley has completed her weaselly 180-degrees turnabout. In a fundraising email she sent out this past week for her nonprofit group, Stand for America, Haley praised Trump as a politician who nobly placed the public interest ahead of his own. She wrote, “All during President Trump’s time in the Oval Office, the safety, the prosperity, and the freedom of the American people came first.” 
That’s not what Haley said about the January 6 riot. Does she think Republican voters won’t notice her brazen flip-flop? Perhaps not. This might not be a dumbass comment, just a comment for people who are dumb. Haley’s the runner-up this week.
On to the winner. Here’s a fair proposition: If you try to help an authoritarian overturn a democratic election, you ought to pay a price. Yet the pooh-bahs of the Claremont Institute, a right-wing think tank, appear to believe otherwise. A few days ago they released a statement about one of their senior fellows, John Eastman. He’s that conservative constitutional law “scholar” who wrote a memo advising Trump how he could mug the Constitution and remain in office—the blueprint to a coup. Well, it seems, memos have consequences. After Eastman’s role in Trump’s Big Lie plot was publicly exposed, some of his old pals in academic and legal circles decided that undermining democracy warranted shunning Eastman. The institute gripes that the American Political Science Association “effectively cancelled” the group’s participation in the association’s annual meeting. (It moved several of its panels—two of which included Eastman—from in-person to virtual.) And the conservative Federalist Society, the institute grouses, “has refused to allow” Eastman “to discuss essential constitutional questions.” (The society apparently removed Eastman as chair of a practice group without tying this move to his role in Trump’s attempted coup.)
In a tweet, the institute decried all this as a “combined disinformation, de-platforming, & ostracism campaign.” And in the statement, it moaned, “These attempts to limit the Claremont Institute’s and John Eastman’s ability to express their views mark a dangerous escalation in the censorship now threatening American democracy.” Oh boy. Talk about not reading a room. Eastman tried to undo a free and fair election. Now his comrades are upset that Eastman’s conservative buds don’t want to play with him anymore. He’s not being punished for holding an unpopular opinion. He’s being ghosted for aiding and abetting an attempted Constitution-defying putsch. And the rightists of the Claremont Institute should understand this is how the market works. You do something wrong, and your associates have the right to respond. Claremont’s astounding lack of self-awareness reverberates in the statement’s final paragraph: “The Claremont Institute will not remain silent in the face of widespread lies peddled by malicious domestic political opponents.” Lies? Did someone say lies? Who supported the biggest lie of them all? Sorry, John. Enjoy your subpoena when it comes. Mailbag Okay, I asked for it—that is, reader feedback on This Land—and I received a bunch.
William Huckell emailed:
Interesting but not fond of your Writing. Suggest some editing and less political Jargon.
Reva Katz said:
Over the years we’ve come to expect deep, insightful writing and reporting, often what was not evident or available from any other source. But while we strongly agree that Trump and McConnell, et. al, remain significant dangers to every facet of a free nation, we hear all of this 24/7, over and over and over again, on MSNBC, NYT, WAPO, even the Anchorage Press. It’s very underwhelming to get these issues and find that you, too, have decided to overlook all the urgent issues and news in favor of an easy crowd pleaser. It’s also extremely disappointing to see that you, too, are missing all the trees because of the forest.
Reva didn’t say what trees are being missed. And I don’t consider writing about Joe Biden and the democracy crisis or the 1/6 committee to be easy crowd-pleasers. But viva la difference.
Marie Infante commented:
Thanks David. I love your work but find it necessary to take a sabbatical from all news. I need a break from having to listen to “both sides” and then discern what is reality or, at least, what is the reality I want to live in. Montana is NOT it! Believe me, but trying to maintain balance here against a background of my East Coast (actually Jersey Shore) roots is an immense effort. Will look for your newsletter after I recover some.
Good luck, Marie. I hear Montana has some lovely spots.
Ron Oetting advised:
I would urge you to Keep it Simple, Stupid; I'm afraid "too much" content might turn off your readers who don't have the time—or patience—to read exhaustive narratives.
This is a short excerpt from Ron’s note, which was very, very long. Yes, a few readers have complained the newsletter is too lengthy. But especially when we present it to new audiences, I like to give a full flavor of what it does and will cover. And isn’t scrolling easy? In any event, I will endeavor to be more compact—though that may be tough with all there is to write about these days and all the engaging contributions to the Mailbag. Meanwhile, there has been much encouragement from readers.
William McCann chimed in:
I'm an old guy, 79, living in New Hampshire. I have been reading your reports and analysis since forever and I hold you in the highest regard. This Land is off to a great start and I'm delighted to be on board. I don't know how you keep your shit together in all the turbulence but I sure as hell appreciate what you are doing….Stay healthy!
Thanks, William. Thirty minutes of cardio and 10 minutes of meditation each day helps.
Harry Hannah wrote:
I enjoyed the article expressing concern about the Biden administration’s seeming reluctance to confront the Trump/GOP revolt. I agree. This is not just a political crisis, but an existential threat to the US and in many ways it is more threatening than China, Russia, or Al Qaeda. We should treat it as such. While it may be wise to keep Biden above the fray that does not apply to others, especially DOJ/Garland. This is much more than a law enforcement issues. As a retired CIA officer this looks like a major and ongoing, albeit slowish, insurrection similar to ones in other countries. Had what Trump/GOP done (is doing) in any other country we would be undertaking a major diplomatic pressure campaign and imposing sanctions on key people.
Merredith Ahearn weighed in:
It would be better if the MoxieCam was included every week. 😊. And at the top of each newsletter, too😉. Well, after your header drawing, of course.
Nancy Williams seconded that notion:
And more Moxie please!!!
So let’s get to the most popular feature...
Got anything for the Mailbag? Email me at thisland@motherjones.com. MoxieCam™ Moxie and her new Mini-Me (a.k.a. Butter): 
Read Previous Issues of This Land October 12, 2021: How Donald Trump betrayed Trump country; one of the best books about survival and isolation ever; the disappointments of The Many Saints of Newark; and more.
October 9, 2021: Can Trump and the GOP be stopped from shoving 1/6 into a memory hole?; how you can join a This Land online salon; the world premiere of Jill Sobule’s new song, “You Better Not F*ck in Texas”; the Mailbag; MoxieCam™; and more.
October 5, 2021: The Democracy Crisis: Could this be Joe Biden’s big mistake?; kicking Pat Robertson on the way out; Skyfall vs. Casino Royale; a Velvet Underground tribute; and more.
October 2, 2021: How we almost got that big Lewandowski scoop; Dumbass Comment of the Week; MoxieCam™; and more.
September 29, 2021: Note to Greta Van Susteren: The road to hell is paved with both-siderism; the value of Netflix’s Worth; a crazy CIA story; and more.
September 25, 2021: What do Common, Leonard Bernstein, and Dwight Eisenhower have in common?; Dumbass Comment of the Week; the Mailbag; MoxieCam™; and more.
September 21, 2021: The Trump-Russia scandal denialists are taking another desperate stab at gaslighting you; Netflix’s The Chair nails the assignment; and more.
September 18, 2021: Hey Marco Rubio and Glenn Greenwald, this is the real problem with Milley, Trump, and nuclear weapons; Dumbass Comment of the Week (did Barack Obama really kill rock ’n’ roll with racial politics?); the Mailbag; MoxieCam™ (a new toy!); and more.
September 14, 2021: Will the new Bill-and-Monica television series spur a reappraisal of the Clinton scandal?; a stunning new Holocaust movie you can’t see—yet; one of the best articles ever about a family and its dog; and more.
September 11, 2021: How Trump’s conspiracy theories are killing people in West Virginia and elsewhere; more 9/11 reflections; Dumbass Comment of the Week (Special Confederacy Edition); a look at HBO’s very odd White Lotus; MoxieCam™; and more.
September 8, 2021: 9/11 plus 20: a remembrance and a thank-you; the chilling climate crisis warning in HBO’s Reminiscence; and more.
September 3, 2021: Texas shows how Trumpism has become fascistic vigilantism; Dumbass Comment of the Week; Rock ’n’ Roll Flashback (how I was popped by Iggy Pop); MoxieCam™; and more.
August 31, 2021: How a 1954 analysis perfectly explains today’s Republican Party; on his new album, James McMurtry captures the spirit of Warren Zevon; and more.
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