Merrick Garland’s “Existential” Choice

Image by Darren Halstead.

Nobody on the Left should deride as insignificant the current public US House hearings on Donald Trump’s effort to stay in power ultimately through violent means in the wake of Joe Biden’s clear victory in the 2020 presidential election. Unimportant? Only to someone inured to the difference between previously normative bourgeois democracy and the authoritarian fascism that the party of Trump, De Santis, Gosar, Abbot, Mastriano, and Taylor-Greene now upholds.

As the January 6 Committee vice chair Liz Cheney (R-WY), a right-wing but still republican, Republican noted in her introductory comments at the committee’s first nationally televised hearing last week, Trump as president led what she called “a sophisticated seven-point plan” to overturn the 2020 presidential election over several months. Cheney did not provide the specific coup points in her opening statement, but a committee source provided the media with this account of Trump’s “sophisticated” plan:

+1. President Trump engaged in a massive effort to spread false and fraudulent information to the American public claiming the 2020 election was stolen from him.

+2. President Trump corruptly planned to replace the Acting Attorney General, so that the Department of Justice would support his fake election claims.

+3. President Trump corruptly pressured Vice President Pence to refuse to count certified electoral votes in violation of the U.S. Constitution and the law.

+4. President Trump corruptly pressured state election officials, and state legislators, to change election results.

+5. President Trump’s legal team and other Trump associates instructed Republicans in multiple states to create false electoral slates and transmit those slates to Congress and the National Archives.

+6. President Trump summoned and assembled a violent mob in Washington and directed them to march on the U.S. Capitol.

+.7. As the violence was underway, President Trump ignored multiple pleas for assistance and failed to take immediate action to stop the violence and instruct his supporters to leave the Capitol.’

“This Was Sedition Gate”

That’s pretty damning even if “sophisticated” may be too strong and “corruption” is too mild. As the nation’s top liberal constitutional law professor, Harvard’s Laurence Tribe, the former teacher of United States Attorney General Merrick Garland, told MSNBC viewers two days after the committee’s first prime-time hearing:

“For the first time in the 246-year history of this country, we had a president of the United States who didn’t only organize and assemble a mob but laid the plans …for overtaking the government of the United States. This was nothing like Watergate. This was Sedition Gate. And what emerged clearly from the hearings was that you don’t almost overthrow the United States government by accident, or as the result of some mistaken belief that you won. The committee made it clear, and this was a major takeaway, that the president’s own daughter, his attorney general, everyone around him told him ‘Mr. president there’s no there there, the story that you legitimately won is pure BS,’ and it became clear that it wasn’t just a mob that got out of control. There was a huge group at the Ellipse, but long before the president fired up that group, the Proud Boys, who he had told to “stand by and stand back,” and the Oath Keepers, had engaged in reconnaissance of the Capitol, with the help of member of Congress who acted essentially as insiders in the Capitol. They were there waiting for the group from the Ellipse to arrive. And when those reinforcements arrived, they became essentially an army. For strategic reasons, they had left a lot of their weapons back in Virginia. But make no mistake: this was an armed insurrection against the United States of America, not just the Capitol building… The President of the United States said that he thought maybe it was a good idea to have his Vice President assassinated[!]…”

Hello? This is significant stuff even if the committee and Tribe failed to say “coup” and can’t bring themselves to join US Congressman and former House impeachment manager Jamie Raskin (D-MD) in labelling the January 6th assault on the Capitol as “fascist” (see note 1) – a term that a too-small of band of left and liberal commentators quite properly fixed upon Trump and Trumpism from the start of his presidency and before.

Some New Stuff That Matters

Is it true that the January 6th committee “hasn’t come up with anything new” – another claim that can be heard from the demented sort of “leftists” who think that serious engagement with Trump’s fascism means loyalty to the capitalist-imperialist Democrats?

No, it isn’t. It’s true that much of the “seven-point” fascist (“corrupt” and “sophisticated”) plan is already known, of course. But we have learned now that Herr Trump’s own daughter Ivanka didn’t believe Daddy’s Stolen Election Lie (the orange fascist reptile has already attacked his darling offspring over that). We are getting more information on how stunningly involved the fascist SCOTUS spouse Ginni Thomas was in trying to arrange fake Elector slates to overthrow the election. We are learning more on how repeatedly and frequently Trump was briefed by top insiders on how utterly bogus and indeed absurd his claims of a stolen election were. We have learned that the epic buffoon and major demented Trump influencer Rudy Giuliani was drunk when he told Trump to claim victory on election night. We have learned that Trump fraudulently raised a quarter of a billion dollars on his sham election claim, making it “not just the Big Lie but also the Big Rip-off.”

We have that learned that two key armed and fascist paramilitary forces – the Oath Keepers and the Proud Boys (whose t-shirts proclaimed “Pinochet Did Nothing Wrong”) – descended on the Capitol with tactical gear even before Trump gave his infamous “fight or you won’t have a country anymore” speech at the Ellipse on the morning of January 6th. (That is quite different than the common image of the “Capitol riot” as just a crazed mob of ordinary folks driven nuts by the speech and the steal narrative.)

There is chilling new material on coup plotters and participants within Congress, including Republi-fascist House members who revealingly sought pardons from Herr Donald before he was finally shat out of the White House. These Congressional seditionists helped fascist operatives understand the layout of the Capitol complex, the location of “enemy” Representatives (held by supposedly “radical Left” Democrats) offices, insecure windows, and more.

We are learning that Mike Pence’s refusal to be put in a limousine and taken out of the Capitol Complex on January 6 wasn’t about calming the public and saving face as much as it was about Pence’s reasonable fear that Trump coup plotters hoped to take advantage of his absence as a pretext for cancelling the Electoral College certification by Congress.

And we have learned that Trump said that his Vice President Mike Pence may have deserved execution by the fascist crowd as the attempted insurrection proceeded without his interference, with attacking Amerikaners chanting “hang Mike Pence” and setting up gallows on the steps of the Capitol. “Amid the many extraordinary revelations at the January 6 committee’s first primetime hearing,” VOX’s Zack Beauchamp writes, “one stood out for its sheer depravity: that during the assault, when rioters chanted ‘hang Mike Pence’ in the halls of the Capitol, President Donald Trump suggested that the mob really ought to execute his vice president. ‘Maybe our supporters have the right idea,’ he said, per a committee source. ‘[Mike Pence] deserves it.’”[1]

“Having Us Go Absolutely Down the Tubes as a Democracy”

Will the January 6th hearings help the dismal Dems keep Congress? That seems unlikely. As one cable talking head after another worries, the electorate is too preoccupied with day-to-day problems led by runaway and things like finding baby formula and steering clear of gun violence to worry about assaults on “constitutional democracy.” Insofar as this is true, it is both understandable and pitiful. With all due respect for the horrors and limits of bourgeois democracy in its distinctive US-historical (slaveowners’) form, chances for advancing decent solutions to the multiple and intersecting horrors of life under the class dictatorship of capital – including environmental catastrophe on a scale that raises the very real specter of human extinction in this or the next century – fall significantly under the rule of patriarchal white nationalism, also known as fascism, which is the practically unmentionable essence of the Republican Party in the Trump era.

The bigger question about the January 6th hearings is if they will lead to the prosecution and conviction of Trump on the basic of obvious and overwhelming evidence that he led and engaged in a plot to overthrow the US government. The notion that there’s any doubt that Trump committed incarceration-worthy felonies is laughable. Of course he did. The real question is this: is the US ruling class and governance order capable of putting a longstanding gentleman’s agreement on not prosecuting former presidents aside in the special and exceptional case of an attempted fascist coup?

Tribe thinks his former Harvard Law student and current US Attorney General Merrick Garland faces an “existential” decision. Is the nation’s top prosecutor willing to risk the possibility of significant right-wing violence and even “civil war” by indicting and trying the nation’s 45the president for undertaking what Tribe would probably not want to call (but was in fact) a fascist coup attempt? As Tribe told MSNBC’s Ayman Mohyeldin last weekend:

“I believe that he will conclude that the evidence is absolutely strong enough to convict the president beyond a reasonable doubt of at least four major federal felonies…The evidence is almost certainly already there. What he has to do is make a very difficult choice. A lot of people who think it’s easy underestimate the existential significance of indicting a former President of the United States. …Many people are telling [Garland] it would cause deep unrest, violent reaction, maybe even civil war for the popular former president to be indicted. What he’ll have to do is ask whether the costs to the country in terms of having this repeat itself and in terms of having us absolutely go down the tubes as a democracy, whether those outcomes outweigh the undoubted complicated costs of indicting a former president. That’s the balance that I think he will be struggling with. But if I know Merrick Garland, and I think I do, I don’t think he will have any doubt that the evidence is there to show that Donald Trump beyond a reasonable doubt was part of a seditious conspiracy and incited insurrection and committed fraud against the United States and committed a number of other serious federal crimes. The evidence will be there. The judgement call is one that I hope the attorney general will make with a view to the long future of this country because we don’t have much future if a president like this one is ultimately not held accountable.”

The Trump Hall Putsch as a Training Exercise?

That is a very stark, learned, and sage reflection on Garland’s choice on Tribe’s part. Notice the esteemed professor’s candid acknowledgement that overwhelming legal evidence and thus the rule of law can very well be overruled by the rule of (unmentionably fascist) force – by the fear of “violent reaction” and “even civil war.” And note also how Tribe is willing to admit that the US will die “as a[n unmentionably bourgeois] democracy” if Trump is not prosecuted.

Good for Tribe. What’s depressing is the significant extent to which he leaves the door open for finding it understandable if Tribe fails to act on the overwhelming evidence against Trump. Does Tribe think “violent unrest” and “even civil war” is any less likely if Garland takes the cowardly path that, as Tribe fails to mention, is strongly indicated by Garland’s failure to act on evidence that has clearly been sufficient for prosecution from early on and well before this month’s public January 6th hearings.

The negative historian lesson – likely to be avoided in mainstream US media-politics culture because of the doctrinal American Exceptionalist belief that “it can’t happen here” – is Adolph Hitler getting off lightly and continuing on as a major political actor seeking to Make Germany Great Again after the failed Beer Hall Putsch of 1924.

Does Tribe seriously believe that the risk of fascist-instigated civil war will be reduced by not prosecuting the orange fascist malignancy? If so, how Weimar.

There’s a phrase for attempted coups whose leaders don’t get put down: training exercises.

My money is on Garland chickening out. I hope I’ve bet wrong.

Only the People

In any event, neither the Democrats nor the fatally flawed establishment institutions on which Democrats insist that we rely – like the Supreme Court that stands posed to rape majority public opinion by ending women’s constitutional right to an abortion and the absurdly powerful and malapportioned Minority Rule Senate (living legacy of the nation’s slave origins) that sits atop the ridiculously bicameral legislative branch – are remotely going to save us from the chilling reactionary drift that continues nearly unabated under Biden as he prepares to kiss the ring of the rulers of the most reactionary government on Earth – an absolutist regime that has ordered death by stoning for women accused adultery. Only the people themselves can halt the many-sided march to fascism and thereby keep alive hopes for a genuinely democratic society beyond the rule of capital.


+1. While this revelation is hardly surprising to those of us who closely followed Trump’s behavior over the years, it has had quite an impact on Beauchamp. Seven years after a number of activists commentators easily and accurately identified Trump as a fascist, Beauchamp is now willing to conclude that “it’s reasonable to call Trump a fascist”:

‘Endorsing violence is hardly new for Trump; it’s something he’s done repeatedly, often in an allegedly joking tone. But the reported comment from January 6 is qualitatively worse given the context: coming both amid an actual violent attack he helped stoke and one he did little to halt. The committee found that the president took no steps to defend the Capitol building, failing to call in the National Guard, or even speak to his secretaries of Defense and Homeland Security.

While he was de facto permitting the mob’s rampage, he was privately cheering the most violent stated objective of people he acknowledged as “our supporters.”

Throughout Trump’s presidency, there was a raging debate among experts as to whether it was accurate to describe him as a “fascist.” One of the strongest counterarguments, that his political movement did not involve the kind of street violence characteristic of Italian and German fascism, was undermined on January 6 — though some scholars still argued that the term was somewhat imprecise.

But when a leader whips-up a mob to attack democracy with the goal of maintaining his grip on power in defiance of democratic order, then privately refuses to stop them while endorsing the murderous aims of people he claims as his own supporters, it’s hard to see him as anything but a leader of a violent anti-democratic movement with important parallels to interwar fascism.’

There’s quite a bit wrong and silly about Beauchamp’s reflection. Why specify just “parallels to interwar [European] fascism” as if that’s the only fascism that matters? There’s plenty of contemporary 21st century fascism – neo-/para-/proto-/late- are some of the prefixes that some commentators require (I’m fine with no prefixes) – to denounce and fight against, God knows. The supposed “raging debate among experts” that Beauchamp links was no such a thing. It was a one-sided presentation of the consensus “expert” denialist opinion that the abject fascism-denier Dylan Matthews pathetically arranged on VOX. The only partial exception to Matthews’ foolish judgement that Trump and Trumpism didn’t fit “the F-word” designation was Yale philosophy professor Jason Stanley’s briefly mentioned take on fascism as a living movement and political playbook and Matthews’ unavoidable recognition that the events of January 6th had compelled leading fascism historian Robert Paxton to reverse his judgement that Trump wasn’t a fascist. The VOX “debate” was a joke featuring a narrow coterie of sheltered academic fascism deniers, appeasers, and cowards (Stanley absurdly being the only exception). I took Dylan Matthews and his carefully selected “experts’” arguments apart one by one in the fourth chapter (titled “The Anatomy of Fascism Denial”) of my most recent book This Happened Here: Amerikaners, Neoliberals, and the Trumping of America. (The volume is worth purchasing for that at times amusing chapter alone!). Still, as the old saying goes, it’s better late than never. If Zack Beauchamp can now get it through his head that Donald Trump is a fascist in ways that show direct parallels with the Classic Coke version, well, then, good for him.


Paul Street’s latest book is This Happened Here: Amerikaners, Neoliberals, and the Trumping of America (London: Routledge, 2022).