Merrick Garland’s complicated Trump prosecution calculus

From Day One, Attorney General Merrick Garland has faced a dilemma: How to deal with Trump. The pressure from within the Democratic Party to prosecute Trump has been enormous. But a Trump acquittal would be a political catastrophe.

Navigating a Trump prosecution has become much more difficult of late. After a year where Trump looked like he was too crippled to run, the collapse of President Biden’s approval ratings has made a Trump return to the White House a very real possibility. At the same time, the Jan. 6 hearings have not just damaged Trump, they have turbocharged Democratic rage. The sum and substance is that not prosecuting Trump is becoming practically impossible.

It is no secret that Democratic voters despise Trump; in fact, they disapprove of Trump much more than Republicans approve of him. Hating Trump is the superglue that holds together the rickety, squabbling Democratic coalition.

According to a recent YouGov Benchmark, Trump has an 84 percent unfavorable rating among Democrats — 77 percent “very unfavorable.” With liberals, the numbers are even worse: 88 percent unfavorable and 83 percent very unfavorable. For Republicans, Trump has an 80 percent favorable, but only 55 percent very favorable. Reuters-Ipsos puts Trump at 86 percent unfavorable (73 percent very unfavorable) with Democrats, while Republicans are at 73 percent favorable (38 percent very favorable).

The Morning Consult July 17 poll has Trump at 90 percent unfavorable with Democrats.

Democrats overwhelmingly think Trump has responsibility for the Jan. 6 riot. According to YouGov, 44 percent of those polled think Trump engaged in illegality, but that rises to 79 percent among Democrats and 80 percent among liberals. Reuters-Ipsos polls Democrats at 83 percent believing Trump is “fully” or “largely” responsible, as opposed to 24 percent of Republicans.

Of course, convicting an individual in a court of law is much, much more difficult than convicting someone in the court of public opinion.

Risky business

Prosecuting Trump is risky territory for Garland. Not only is Trump going to fight any prosecution tooth and nail, he is also likely to go to any lengths to win.

Being a presidential candidate will call into question the propriety of any prosecution, although most Democratic voters are unlikely to care. Any prosecution is going to be a circus in which any slip-up by Garland or his team would be disastrous. Garland also needs to get Trump on a felony. A misdemeanor or civil penalty would be viewed as a weak, anti-climactic result — Republicans would celebrate and ridicule Garland, while Democrats would rage at him.

But worst of all would be an acquittal. If Trump were tried and acquitted, he could just coast off that victory right into the White House.

Not knowing the full extent of the evidence the Justice Department has or what else the Jan. 6 Committee will uncover, it is impossible to truly handicap a Trump trial — which leaves us with trying to consider what would be the best political strategy for Garland that recognizes there will always be uncertainty as to getting an actual conviction. Any way you cut it, there will be a lot of risk.

Garland could just go for Trump right away, hoping that a prosecution will add to Trump fatigue among GOP voters. If Trump thinks he will lose the Republican nomination (or a general election), he will likely make up some kind of excuse to get out. But it is equally likely that Trump will use his “martyr” status to his advantage and cast any Republican primary opponent as being in cahoots with the Democrats.

If the national Democratic leadership really wants Trump to run, viewing him as the most vulnerable Republican, they could encourage an impulsive move to prosecution. After all, boosting the “enemies of democracy” is the main focus of the Democratic Party these days. But it’s one thing to help get a few far-out candidates for Congress, it’s another to risk re-electing Trump.

What seems much more likely is that Garland will start on the outside and work his way in. By that I mean he will see if he can prosecute people in Trump’s inner circle who were part of the decision-making process leading up to Jan. 6. A trial featuring a senior staff member or two would help satisfy Democrats braying for blood.

Trying people around Trump would have several side benefits. For one thing, such a trial might yield evidence to use against Trump. It would also put pressure on Trump himself and increase Republican voter concern about backing a damaged candidate. GOP voters might well rally around a martyred Trump, but hardly any will care about a barely recognizable staffer. Even better, a trial might lead to a plea bargain. If there is one thing known about Trump, it’s that he rather casually throws people overboard. Should Trump leave a loyal staffer hang out to dry, that staffer might just agree to hang Trump.

Any trial or set of trials against Trump staffers would also chew up time for Garland — which would help with a Trump prosecution. If Garland is able to collect a strong enough case against Trump, he could well want to indict Trump into 2024. In the collision between demands for justice/getting Trump and the risk to the integrity of the American political system, getting even is likely to win out.

If Garland were to indict in early 2024, completing an actual trial before the November election would be quite unlikely, thus allowing Garland to escape the potential nightmare of a Trump acquittal. If Trump is not the Republican nominee — or if he loses in 2024 — a conviction or acquittal is almost immaterial. If Trump is convicted, any Republican President would at least strongly consider a Gerald Ford-style pardon (Trump is headed to prison if a Democrat wins).

If Trump is acquitted and a Democrat is president, Trump is likely still finished as he would be way past his political expiration date at age 82 in 2028. Even Trump would have a very hard time hanging on to relevance that far into the future. If a Republican wins in 2024, an acquitted Trump would be boxed out until 2032. An acquitted Trump would be a whole different kind of trouble for another Republican in the White House, but he won’t be back.

For Democrats frothing for a Trump indictment, they may have to wait.

Unless Garland has an absolutely open-and-shut case — or he is ready to play with fire — the attorney general is likely to slow-play a Trump prosecution. But for those around Trump, I would suggest lawyering up.

Keith Naughton, Ph.D., is co-founder of Silent Majority Strategies, a public and regulatory affairs consulting firm. Naughton is a former Pennsylvania political campaign consultant. Follow him on Twitter @KNaughton711.