Hopefulness, Justice... The American Way?

It dawned on me after I posted it that this morning’s post on the fascist personality might be a little depressing, especially just as we’re about the head into the last couple of days before the consequential election on Tuesday. That image of a mobile phone message that went out to every voter in Florida today was Ron DeSantis’ closing argument. Divisive and threatening. This is Bernie’s— hopeful:

Sticking with hopeful, what I want to turn to is a post that John Pavlovitz wrote yesterday, No, Hatred Is Not Winning. “Yes,” he admits, “Yes, there are some really miserable human beings doing some incredibly cruel things to a whole lot of people—many from Senate seats and mega church pulpits and capitol buildings and television studios [and the Supreme Court]. This gives their vitriol a megaphone, it magnifies their enmity, it earns their sickness greater bandwidth than it deserves. The venom those relatively few people produce commandeers the headlines and writes the loud narrative of impending disaster. It’s a story you read and re-read all day long. It becomes gospel truth. But that is not the whole story. It is not your story, or mine, or the story of tens of millions of people like us who are profoundly disturbed right now; those of us sick to our stomachs and moved to tears. We are furious, and that fury is an alarm ringing out in the center of our chests. In that place, hatred is not winning. In that place, love and goodness are trending. In that place, life is defiantly breaking out. In that place, hope is a rising flood.”

We need to stop waiting for permission from someone else to be hopeful. We need to stop requiring consent to be optimistic. We need to believe the goodness we see in the front row of our lives, instead of the lies of those we see from a great distance.

Someone once asked Prince about the relatively poor chart performance of one of his albums. His response was something to the effect of, “It’s number one in our house.” He was reminding the reporter that his life would not be defined by anyone else; that he could only measure for himself what gave him joy or meaning. He could only produce something beautiful to him and rest in that. He could only make the world he had access to.

Take a look in the mirror, friend. You are living proof that hatred is not winning. In the story you are writing here— good, compassionate, open-hearted people still walk the planet. Don’t underestimate this.

In the hearts of hateful people, yes hatred is winning. In those continually consumed with contempt for others, yes violence is trending. In the lives of those who get up every day seeking to do damage, yes the bad people are winning. But this is not who you are.

And as exhausted and disheartened and terrified as you are— there are millions upon millions who are similarly burdened.

Take a look in the mirror and remember that there, hatred is not winning. Notice the people in your news feed who give you reason to keep going. Realize that in them, hatred is not winning. Think about the people you see being brave and selfless and compassionate, and remember that because of them, hatred is not winning. Look across the room or through the contacts on your phone or next to you at dinner, and remember that hatred is not winning there.

As long as the heart of decent people is still beating— hope lives. Put your hand on your chest and be reminded. Be encouraged.

A couple of weeks ago Franklin Foer penned a much-discussed article, The Inevitable Indictment Of Donald Trump for The Atlantic. He began by noting that “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.”

That’s where the healing begins. That’s the only place where the healing can begin. Foer warned that “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… But I believe, if the evidence of wrongdoing is as convincing as it seems, he is going to indict Trump anyway.”

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.

…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.

…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. Lawfare described 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.